At Tuesday’s oral arguments in the Hobby Lobby and Conestoga Wood cases, several of the justices’ questions seemed to grasp the potential harms their decision could create for people not represented in the Courtroom. Justice Kagan saw how a decision in favor of the for-profit corporations could allow the corporation to evade federal law. Justice Kennedy questioned whether an employer has the right to impose religious beliefs on his or her employees. Justices Sotomayor and Kagan questioned whether the logic behind a decision in favor of Hobby Lobby would enable for-profit corporations to deny medical coverage to their employees for virtually every type of treatment. Justice Sotomayor questioned what a ruling for the corporations would have on corporate management and structure. And Justice Kagan commented that taking away the statutory entitlement of contraceptive coverage for women is a “tangible harm”.
What is worrisome, however, are the mistakes some justices made about important facts of the case and their failure to grasp some of the long term implications their decision in this case could have for the nation. Here’s what — based on the oral arguments — the Court seemed to miss:
1) Hobby Lobby could serve as a blueprint for discrimination and have significant implications for the LGBT community: Although several justices noted that a decision in favor of the corporate petitioners could lead to other corporations using religion as justification to evade federal law, they did not connect the logic behind Hobby Lobby’s argument with that of SB 1062, the Arizona legislation that would have would have enabled business owners to use their religious beliefs as justification to discriminate against the LGBT community had Gov. Jan Brewer (R) not vetoed it.
This logic would provide those who claim that their religious beliefs are at odds with specific communities the power to refuse to hire members of that community for a job or even serve them in a restaurant and could open the door to similar denials of equal compensation, health care access, and other equitable treatment for LGBT people, people with HIV, and anyone else whose family life or health needs are unsupported by their employers’ religious convictions.
2) What contraception actually costs and the implications these costs have for low income women: Although Justice Scalia said that because the corporations were objecting to just “three or four birth controls”, that they weren’t “terribly expensive,” the reality is much different.
The methods of contraception that Hobby Lobby and Conastoga Wood oppose are, indeed expensive and, as Solicitor General Verrilli put it, “precisely the kind of cost barrier” that the ACA was intended to break down. Until the contraception coverage under the ACA began in August 2012, most women with health insurance were paying between $30 and $60 per month for short-term birth-control methods, and the most effective long-term methods cost thousands of dollars, prohibiting many women from being able to access them.
Why is it important to provide contraception coverage? Consistent use of contraception prevents unintended pregnancies which cost federal and state agencies 12.5 billion dollars in 2008. One-third of women of reproductive age who inconsistently use contraceptives account for 95% of unintended pregnancies in the United States. Fifty-five percent of young adult women voters in a 2010 survey did not use their contraceptive methods consistently at some point due to cost factors. In 2012, before the contraceptive benefit kicked in, nearly one in four women with household incomes less than $75,000 delayed seeing a health care provider for contraception or gynecologic care to save money.
It is clear that contraception coverage is a significant benefit for women who choose to make family planning and healthy decisions. The contraception mandate in the ACA was intended to improve public health by ensuring this needed care is provided without out of pocket costs.
3) The contraception that Hobby Lobby and Conestoga Wood oppose are NOT abortifacients: Although Justice Scalia believes that the methods of birth control that Hobby Lobby opposes are “abortifacient[s]”, he is wrong. Birth control is not abortion. Solicitor General Verrilli noted that federal and state law does not consider the contraceptive methods at issue to be abortifacients. While Verrilli is right, he should have also noted that science does not consider these methods to be abortifacients either.
Dr. Jeanne A. Conry, the President of the American Congress of Obstetricians and Gynecologists and Dr. Nancy L. Stanwood, the Board Chairwoman of Physicians for Reproductive Health detailed this in a CNN piece:
The employers think that certain forms of contraception (emergency contraception pills and intrauterine devices) cause abortions. But what they believe about science is contradicted by the science itself . . . Emergency contraception pills work by inhibiting or postponing ovulation, or the release of the egg, and this prevents fertilization from occurring. Intrauterine devices (IUDs) work by preventing sperm from reaching the egg, either by creating a barrier or by creating an environment that inhibits the mobility and viability of sperm or, in the case of copper IUDs, potentially by preventing implantation of a fertilized egg before a woman is pregnant.
4) Just because a corporation is “closely held,” doesn’t mean it’s a mom and pop businesses: Chief Justice Roberts — perhaps looking for a narrow way to favor the corporate petitioners in this case — compared the petitioners to “large publically traded corporation[s].” But a decision granting religious rights solely to corporations with only a small number of owners could still have a sweeping impact on many Americans.
Simply because closely held corporations are not traded on the stock market does not mean that they cannot be corporate behemoths. An exemption for closely held or family businesses would have a significant impact. 120 million Americans are employed by small businesses and much of our daily lives interact with them. According to 2010 estimates, private companies accounted for 86.4 percent of U.S. firms with 500 or more employees; and among the 5.7 million companies with employees, less than one percent are listed on a U.S. exchange.
Take Hobby Lobby, for example. They have more than 14,000 employees and had 3.3 billion dollars in revenue in 2013. Some other giant “closely held” companies that you may have heard of that Chief Justice Roberts may want to grant religious liberty rights to? Aramark could impose its “religious” beliefs on its 259,000 employees; Hilton Worldwide on its 147,000 employees; Dell on its 111,300 employees; and — as a special kicker — Koch Industries (with its $115 billion in revenue), on its 60,000 employees.
5) Not having to comply with federal laws and regulations will allow “religious” corporations to reap significant financial benefits unavailable to their secular competitors: Although Justice Scalia suggested that companies that choose to not provide insurance to their employees because of religious beliefs would be at a competitive disadvantage if the Court were to rule for Hobby Lobby, the reality could be much different for many companies.
Corporations that succeed in receiving accommodations could reap potentially significant financial benefits unavailable to their secular competitors, resulting in market distorting effects. A decision in favor of Hobby Lobby would allow corporations to use their religious beliefs to save money by evading generally applicable federal laws and regulations like the Civil Rights Act, the National Labor Relations Act, and the Family Medical Leave Act that are intended to protect employees and ensure that corporations provide needed services.
Donna Barry is the Director of the Women’s Health and Rights Program at the Center for American Progress Action Fund and Joshua Field is the Deputy Director of Legal Progress at the Center for American Progress Action Fund