Well. There’s a lot of disappointment in public health circles about the Supreme Court’s decision yesterday in Burwell v. Hobby Lobby Stores. And for good reason.
By now, you’ve surely heard what happened. In a 5-4 decision, the Supreme Court held that a closely-held corporation can have religious beliefs, and it can impose those beliefs on its employees by withholding insurance coverage for certain contraceptive devices. Come again? Yes, any closely-held corporation (think “owned by just a few people, usually founding family members”) whose owners have a religious belief about a particular medical procedure can refuse to provide insurance coverage for that procedure for their employees.
There’s so many things wrong with decision, its hard to know where to start. For now, I’m looking at two major public health concerns this decision raises. The first is obvious: women will have a harder time getting safe contraception. The second is less obvious: what other medical procedures deemed essential to public health can an employer refuse to cover?
Women’s health care and contraception. For some reason, the issue is so often framed as a lifestyle choice, as if the only reason a woman could possibly want to use birth control is to engage in wild and reckless behavior. But for many women, birth control is essential to good health. Roughly fourteen percent of women use birth control for non-contraceptive related reasons. These 1.5 million women use birth control to treat medical conditions including cancer and endometriosis. And over 58 percent of women who use birth control for contraceptive purposes, cite other additional health benefits including reducing menstrual cramps, migraines, and treating acne. And for some women, contraception is a life-saver. Literally. For women for whom a pregnancy poses a danger, even a life-threatening danger, contraception is key.
To be sure, the Supreme Court did not say that women have no right to contraception. In fact, the opinion reaffirmed our constitutional right to contraception (“Under our cases, women (and men) have a constitutional right to obtain contraceptives”). But the right to contraceptives is different than access to them. When women, particularly those who can least afford another child, are denied insurance coverage for basic preventative care, because their employer has a religious belief, then they suffer. And the collective public health suffers too. We end up with more children on public services and more women who are forced to choose between daycare and employment.
But, contraception, as important as it is, is not the only medical service that may be impacted by the Court’s “decision of startling breadth.” What prevents a closely-held corporation from refusing to cover blood transfusions or vaccinations based on a religious belief? What if, instead of IUDs, Hobby Lobby’s owners were devout Catholics who opposed covering vaccination for its employees based of a belief that, because the cells used to create the initial vaccine lines were from aborted fetuses, all vaccines support abortion? (Even though the Catholic Church supports vaccination and recognizes that the use of vaccines does not support abortion). According to the reasoning of the Court yesterday, the employer has the right to do so. It doesn’t matter if the belief is based in fact (IUDs don’t cause abortion) or an official religious doctrine.
In her scathing (and, in my humble opinion, excellent) dissent, Justice Ginsberg recognized the frightening potential that the decision has on our ability to protect and ensure the public health:
Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?
The majority opinion also saw this potential and tried to stop it by limiting the holding to just the contraceptive mandate, stating the decision “should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.” Such statement, however, is insufficient to prevent a potential public health crisis — it does not state that an employer can never refuse to cover vaccinations and blood transfusions. Only that it will depend on the circumstances. And while it may be unlikely that the Court would, if push comes to shove, actually allow an employer to refuse to cover vaccines, that does not mean any employer couldn’t try, and potentially, win the right to do so.
And that’s what is upsetting about this decision. Your employer may now be able to dictate, based on its corporate religious beliefs, just what medical services are covered as part of your health insurance benefits. And as is so often the case in public health, the people that can least afford it — the ones who can’t afford another child, and can’t afford effective or safe contraception, and can’t afford to go look for another job — stand to lose the most.