Anything left to be said about the US Supreme Court’s latest decisions about women?
The US Supreme Court finished out its term with decisions that were terrible for women. This piece concentrates on only one of them, Burwell v. Hobby Lobby, because that case is largely about topics covered here at On Science Blogs. The case was decided nearly two weeks ago, but there’s still a lot to be said about it.
So what is left to be said? Well, we could wring our hands over the court’s declaration that science is irrelevant to legal decisions involving religious beliefs. That it sided 5-4 with Hobby Lobby’s insistence that it shouldn’t have to comply with one provision of the Affordable Care Act (ACA, aka Obamacare) by providing its employees with free access to four specific methods of birth control.
These were two brands of emergency contraception (i.e., “morning after” pills) and two models of intrauterine devices. The company says it believes all four cause abortions by preventing implantation of a fertilized egg in the uterus. This despite what is widely said to be a scientific consensus that the four do not prevent implantation, although that seems a bit iffy. The scientific consensus is also, mostly, that nothing happening before implantation can be considered abortion because there is no pregnancy until after implantation.
Unfortunately, that declared scientific consensus is seriously undermined by the fact that the FDA-required labels on these birth control methods warn that they may prevent implantation. Ooops. In a post at The Daily Beast, Tiffany Stanley explains why the labels haven’t been updated to take account of the science. She also says the IUDs can inhibit implantation. At Vox, Julia Belluz lays out details about how the four do their work.
At the Incidental Economist, Nicholas Bagley seems to side with the court. It’s good to honor Hobby Lobby’s religious beliefs because scientists can’t say for certain that the four would never prevent implantation, he argues. In fact, he implies, it’s good to honor them even if it could be proved that these beliefs are dead wrong. Because religious freedom.
Incipient anthropologist Dick Powis seems to approve too, and for a similar reason. At Savage Minds he declares that the Hobby Lobby decision is a win for what he calls ethnophysiology. Ethnophysiology “is the way in which the human body and its functions are understood in a cultural context.” And, he concludes, “Call David Green [Hobby Lobby’s founder], five-ninths of the Supreme Court, and the Christian understanding of human reproduction misogynistic if you want, but to say that they eschew intelligence, logic, and reason because they use the word “abortion” differently is just ethnocentric.”
Oy. Welcome to a mind-bogglingly slippery slope. What about the appalling practices that can be ignored because if you object you’re just being ethnocentric? Human sacrifice. Female genital mutilation. Beheadings. Genocide. Sending non-Aryans to the gas chamber. Etc.
Short-term effects on health care
How will the Hobby Lobby decision affect health care more broadly? That’s what Paul Raeburn wants to know at the Knight Science Journalism Tracker.
In the immediate future, the answer is probably not much. Sara Rosenbaum, Adam Sonfield, and Rachel Benson Gold say at the Health Affairs Blog that, as written, the Hobby Lobby decision does not apply widely.
It does not apply to women whose employers do not impose religious beliefs on their workers, nor to women on Medicaid, nor to women who are covered through insurance purchased privately (including via the federal and state Obamacare health insurance marketplaces.) “All of those women are still guaranteed coverage of contraceptives without out-of-pocket costs,” they say.
It will probably not affect most women with employer-sponsored insurance either–although Rosenberg et al point out that the number of companies and employees affected is impossible to quantify.
I haven’t been able to nail this down for sure, but by implication, even Hobby Lobby itself might happily handle the paperwork for several kinds of no-cost contraception for its employees. This could include the pill and other widely used methods of birth control that were not among the four the company’s legal case was about.
Hobby Lobby’s owners are Protestant Christians, not Roman Catholics, and apparently have in the past not objected to all forms of birth control in principle, as Roman Catholics do (except for the very unreliable periodic abstention from sex called “rhythm.”) Oddly, this is a point nothing I’ve read clarifies, so to me it appears to be an open question whether Hobby Lobby employees will have free access to at least some forms of birth control.
Future effects on health care
In the longer term, the Hobby Lobby decision might have a lot of impact, and not only on health care. In her dissent, Justice Ruth Bader Ginsburg was scathing, arguing that the decision had “startling breadth” and foreseeing that it could lead to restrictions on other medical procedures that some object to on religious grounds.
These could include vaccination, blood transfusion, infertility treatment, some psychiatric treatment, and perhaps even hospice care. She is also worried about whether the ruling can be extended to religious objections on nonmedical matters, for example to anti-discrimination laws protecting gays and forbidding plain old-fashioned gender discrimination.
Writing for the majority, Justice Kennedy said, essentially, “No it won’t.” It remains to be seen how reliable the Justice’s prophecy skills are. At the New Yorker, Jeffrey Toobin describes how this court has historically employed seemingly limited decisions as an opening wedge to get to subsequent broader rulings, as in its serial decisions that have gradually constricted voting rights.
Already dozens of companies have gone to court to fight Obamacare provisions, although Rosenbaum et al think it’s doubtful that large number of companies will seize on the religious exception. For one thing, they say, the immediate economics favor birth control. When employees avoid pregnancy, companies save money.
Finally, the religious war against women
After all the jibber-jabber about how this court was in surprising agreement so much of the time, a point I messed up on a couple weeks ago, these cases turned out to be quite the other thing.
Supreme Court decisions about women’s wombs this term were pretty nakedly made by the men justices against the women justices. And they were not just men, they were all the Roman Catholic men on the Court. Stephen Breyer, the lone man who sided with the court’s three women justices in the Hobby Lobby case, is a Jew. As are Ruth Bader Ginsburg, who wrote the stinging Hobby Lobby dissent, and Elena Kagan. Sonia Sotomayor is a Catholic, but she didn’t let that stop her.