The Supreme Courts narrow 5-4 decision on Monday allowing some for-profit corporations to opt out of contraception coverage under the Affordable Care Act might have turned on this comment from Justice Anthony Kennedy, most often the high courts swing vote. Because the Obama administration had granted religious accommodations to other groups, he questioned whether the contraception mandate was critical to public health. It must have been that the coverage was not that important, Kennedy said during oral arguments.
That was the wrong conclusion. Contraceptive coverage is critical to women, providing access to services vital to their health and well-being. Accommodations that allow religious groups and non-profits with religious affiliations though not ideal for a womans health needs are exemptions permitted under the 1993 Religious Freedom Restoration Act, because those groups foster the interests of persons who are a community of believers.
Thats not true of for-profit corporations, as Justice Ruth Bader Ginsburg articulates well in her dissent. Workers who sustain the operations of those corporations commonly are not drawn from one religious community, she writes.
What the justices have done in this ruling is to essentially put the personal views of a for-profit companys owners above the health interests of the women who are employees. Theyve erected a roadblock to affordable access to the most effective method of birth control.
The Courts majority seemed to seek to minimize the impact of the ruling by applying it only to closely held for-profit corporations those controlled by a limited number of shareholders. But those corporations employ tens of millions.
In her dissent, though, Ginsburg writes that the Courts logic extends to corporations of any size, public or private. The Courts expansive notion of corporate personhood ... invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.
In the majority opinion, Justice Samuel Alito noted that the Obama administration has already designed workarounds having an insurer outside the company provide coverage for nonprofit religious corporations. They can be used for for-profit employers as well. He also wrote that the most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue.
What he didnt say was that such workarounds are being challenged in court as inadequate by religious groups. And federal subsidies for women now without coverage may have great difficulty making it out of the current partisan Congress.
The ruling doesnt affect the broader aspects of ACA. But it is a setback for women and their right to make personal health care decisions for themselves, rather than have their bosses decide it for them based on their religious beliefs.
A poll last week showed a majority of Americans think that decision should be left to women, and not their employers. Its too bad a majority of the Supreme Court justices decided otherwise.
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