Most People Have Sex. Most People Use Birth Control. So Why Is The Supreme Court Making It Harder To Get?
The U.S. Supreme Court today heard oral arguments in a new case concerning Americans’ access to birth control. The legal challenge, Zubik v. Burwell, consolidates seven cases from lower courts. It presents the high court with an opportunity to bring some much-needed sanity to our nation’s birth control policy.
Many people might be surprised to learn that access to contraceptives is under fire. If you thought this issue was settled in the 1960s, you’re wrong. The same people who oppose legal abortion, LGBT rights and other forms of social progress are laboring to deny millions of women access to birth control through health-care plans. Ironically, they are trying to do it under the guise of protecting “religious liberty.”
Let’s begin with two salient facts: The vast majority of people have sex before marriage, and the vast majority of sexually active women of child-bearing years use artificial forms of birth control. Thus, it makes sense to include it in employer-provided health-care plans.
Indeed, the Affordable Care Act (ACA) mandates that birth control be included. Houses of worship are exempt from this requirement, and religiously affiliated non-profits (colleges, hospitals, nursing homes, etc.) and closely held for-profit corporations with religious objections are accommodated fully. All they have to do is certify that they don’t wish to cover contraceptives (either by filling out a short form or writing a letter), and they’re done. A third-party insurer or plan administrator takes over from there and provides birth control to those who want it.
Remarkably, some religious non-profits are asserting that the mere act of stating that they don’t want to provide birth control violates their religious freedom. In other words, an accommodation is available for them — and they’re arguing that the mechanism for taking advantage of it violates their rights!
Consider applying this argument to some other contexts. Let’s say the country has adopted a draft, and the government is willing to exempt pacifists on religious grounds — but the pacifists respond that telling the government they want the exemption violates their rights. What if a Jewish prison inmate wanted kosher meals and prison officials were willing to provide them — but the prisoner refused to tell anyone, arguing that informing them violates his religious freedom?
People with sincerely held religious beliefs have no blanket right to ignore secular laws they dislike, but in some cases the law requires reasonable accommodations to be offered to them. Such compromises seek to balance the rights of believers with the rights of others to be free of discrimination or harm. Such a compromise was offered in the dispute over birth control, but it seems some people simply didn’t want to take yes for an answer.
Could there be something else going on here? It’s quite possible — and it could be something as simple as regressive religious groups reacting to facets of modern life that they would like to roll back.
People with sincerely held religious beliefs have no blanket right to ignore secular laws they dislike.
The Supreme Court upheld the right of married couples to use birth control in Griswold v. Connecticut in 1965. Seven years later, the high court extended that right to unmarried couples in Eisenstadt v. Baird. Prior to those rulings, powerful religious groups, such as the Roman Catholic hierarchy and fundamentalist Protestant groups, can and did apply so much political pressure that birth control was illegal in some states and nearly impossible to get in others.
In the wake of the Griswold and Eisenstadt rulings, most people considered this issue settled. The Obama administration’s completely reasonable decision to include birth control access in the ACA suddenly (and unexpectedly) reopened a “culture war” front that many reproductive-rights advocates believed had long ago been won. The Catholic hierarchy, which opposes all forms of artificial birth control, and some fundamentalist Protestant groups, which oppose forms of birth control that they mistakenly label as “abortifacients,” were handed an opportunity to revisit an issue they lost decades ago.
A direct attack on Americans’ ability to get and use birth control would never fly, so opponents masked their crusade as a quest for “religious freedom.” That shouldn’t surprise anyone; it’s the trend these days. When government clerks such as Kim Davis in Kentucky don’t want to do their jobs and grant wedding licenses to same-sex couples, they cry “religious freedom!” When bakers, florists, caterers and others decide they want the right to discriminate, they say it too.
But what these people are after isn’t religious freedom. It’s the right to use theology to control the private behavior of others, to impose their religion on the unwilling and to employ narrow dogma as an instrument of discrimination.
The Supreme Court majority in the 2014 Hobby Lobby decision didn’t seem to be able to grasp this and instead bought into phony “religious freedom” arguments. The Zubik case gives the high court an opportunity to restore some balance by protecting Americans’ access to birth control and rejecting a reckless attempt to redefine religious liberty as a device to control the behavior of others and deny them their rights. Here’s hoping the justices take it.
