One Question About Tomorrow's Big SCOTUS Case on Reproductive Rights
One question for the pro-choice advocates at Seattle's Legal Voice.
Tomorrow morning, the U.S. Supreme Court will take up the so-called Hobby Lobby and Conestoga Wood cases, in which executives behind those two companies argue that they should be exempt from the federal mandate to provide contraception under the Affordable Care Act because of their religious beliefs. A ruling in their favor would effectively extend the Citizens United ruling, which gave First Amendment political contribution rights to corporations, to say that corporations also have the same right to religious liberty as individuals.
The companies are arguing, essentially, that their First Amendment right to religious expression allows them to opt out of portions of the ACA they find objectionable—in this case, the obligation to provide certain types of contraception, including Plan B emergency contraception and IUDs, which may prevent a fertlized egg from implanting in the uterus, which they believe constitutes abortion.
(A quick note on the science of this: It's baloney. About half of fertilized eggs fail to implant on their own, without any form of birth control, so a woman on the pill actually "loses" far fewer fertilized eggs than a woman who isn't on the pill. And the medical community universally considers pregnancy to occur at the point at which a fertilized egg implants in the uterine wall, which also happens to be the point at which a pregnancy test will be positive. Not that "medicine" or "science" has ever interfered with the arguments of religious zealots.)
The implications are tremendous for people with ovaries and those who have them as dependentsa ruling in the religious company owners' favor could allow companies to opt out of paying for birth control by simply saying they don't want to.
But they also could have much more far-reaching implications: If companies can opt out of providing required health-care services simply by claiming religious objections, there will be nothing to stop executives with religious objections to vaccines from refusing to fund children's vaccinations; to stop those who oppose homosexuality from refusing to fund infertility treatment for gay couples; or to stop those who don't believe in modern medicine at all, like Christian Scientists, from refusing to pay for health care, period. "Depending on how it’s written, it would have the potential to let people basically discriminate and put in place a kind of religious Jim Crow system."
Here in Washington state, the ruling will have immediate practical implications in a separate case in which pharmacists have argued that they should be allowed to refuse to dispense legal prescriptions if they object to those prescriptions on religious grounds. The case has been parked in the 9th Circuit District Court since 2012, pending the ruling in tomorrow's Hobby Lobby case.
In anticipation of tomorrow's Supreme Court arguments, we asked Lisa Stone, executive director of the women's legal advocacy group Legal Voice, what the implications could be for women in Washington state if the Court decides corporations have religious rights.
Here's what she had to say.
The most obvious local angle is that our pharmacy refusal case could be affected by this. Right now, it’s on hold before the Ninth Circuit. It would mean that the antichoice pharmacies and pharmacists that think they have the right not to dispense or stock [Plan B and other contraceptive] will be validated.
Ever since the board of pharmacy adopted the rules [allowing pharmacists to refuse to dispense Plan B] in 2007, the Department of Health has not enforced the rule requiring that all medications be dispensed on site, which means that patients can be and are being denied drugs.
What has been the case is that if a woman, or a man on behalf of his partner, goes in and asks for emergency contraception, the pharmacist can refuse with no consequences.
If the worst happens and the court expands Citizens United to include private sector corporations, then any pharmacy or pharmacist could refuse to dispense any medication, depending on their beliefs. If the worst happens, the 9th Circuit could say [pharmacies] have the right to create their own rules, not just for contraception but for any drug.
And it could go outside health care. It could to go Arlene's Flowers in Kennewick [which refused to provide service to a gay couple]. Depending on how it’s written, it would have the potential to let people basically discriminate and put in place a kind of religious Jim Crow system. Depending on how this comes out, you could see more laws like the one [allowing businesses to refuse service to gay people] in Arizona. It would be open season.