United States: Supreme Court grants private companies control over women's bodies

Everyone should be concerned about the June 30 US Supreme Court’s ruling in favour of retail arts and crafts company Hobby Lobby.

Along with two other family-owned firms, it sued the federal government, saying they should not have to pay for health insurance plans covering four contraceptives to which they object on religious grounds.

The decision represents an expansion of corporations’ rights at the expense of workers, health care provision and women’s reproductive health choice — all in the name of protecting religious freedom.

Most health insurance in the US is privately provided through employer-sponsored schemes. Under President Barack Obama’s healthcare reforms introduced in 2010 (often called “ObamaCare”), all large employers have to pay for their employees’ health insurance schemes by 2016. Regulations stipulate that all new insurance plans must cover all available Food and Drug Authority-approved contraceptives.

Republicans opposed ObamaCare and are seeking to wind it back piece by piece. The Supreme Court’s ruling is part of a pattern of attacks on the scheme.

It reveals both the lengths those opposed to any moves towards universal healthcare will go to undermine it, as well as the weakness of a scheme that relies on individuals and large employers to purchase privately provided health insurance rather than build a publicly funded scheme.

The contraceptives Hobby Lobby objected to were levonorgestrel and ulipristal — emergency contraceptives that work after sex predominantly by delaying ovulation — and copper and hormonal intrauterine devices (IUDs).

The copper IUD works mainly by preventing fertilisation. The hormone-releasing IUD stops the fertilized egg from being implanted in the womb. The religious objectors claimed such methods cause abortions.

In a five-to-four decision, the Supreme Court sided with Hobby Lobby, saying “closely held” (a legal term to describe “family-owned”) companies with religious objections did not have to comply with the regulation.

In dissenting, Justice Ruth Bader Ginsburg made several criticisms of the majority decision. She pointed out that while the people who own the companies might have religious beliefs, corporations are artificial, legal entities without religious (or indeed any other) feelings or beliefs.

Corporations also differ from religious groups, which are set up to pursue the religious objectives of a community with a shared faith — and as such are provided with exemptions under the law. As profit-making enterprises, corporations are set up to make money. The workers who contribute their labour cannot be obliged to share their owners’ religious views.

Most corporations in the US are family-owned; they include giants Cargill, Koch Industries and Mars, each with multi-billion dollar turnovers and tens of thousands of employees. Therefore, the ramifications of this decision are extensive in terms of the numbers of workers potentially affected as well the impact on contraception and other health services.

Since the court does not have a role in determining how sincerely a religious belief is held, or how critical it is to the practice of a religion, it does not take much imagination to suppose that for-profit companies would claim an exemption not only from the contraceptive mandate, but from anything else that might be construed as running counter to their religion in order to save money.

Even if we supposed that a for-profit business had the right to protection of its “religious practice”, most views recognising freedom of religious practices accept these are limited by the rights of others not to be harmed and the broader public interest.

This ruling, however, allows employers to impose their religious views on others regardless of the potential harm it may cause. There is nothing in Obama's health care reform that forces employers to use contraceptions they object to. There is nothing that obliges any employee (with or without religious objections) to use any form contraception.

The ruling allows employers to impose their non-scientific religious interpretation of contraception onto their workers as well as the workers' families who are also covered by the health care plan.

Ginsburg highlighted several other health treatments that are the subject to some religious objections — blood transfusions, medications derived from pigs (including anaesthetic, intravenous fluids and medications coated with gelatin), and vaccinations.

The ruling opens the way for a plethora of treatments that workers may need, but which their boss may be able to use “religious objections” to refuse to pay for the insurance to cover it.

It may also open the way for discrimination on religious grounds against the provision of certain kinds of health care to people from the lesbian, gay, bisexual, transgender, intersex and queer communities.

But just looking at the decision on the contraceptive mandate, the potential impact on women requiring contraception is huge. Already, many women are stopped from using the contraception of their choice due to cost.

Ginsburg noted that provision of IUDs (which could be up to 90 times more effective than condoms) cost about a month’s salary for those on minimum wage. This places them out of reach of minimum wage earners who are not covered by health insurance.

The impact in terms of unwanted pregnancy may be substantial. And its impact in furthering the ideological push to stop women from making their own decisions about reproductive health needs is incalculable.

The ruling comes in the context of a global tussle over rights — between the rights of women to reproductive healthcare, and the rights to freedom of conscience of others.

Some doctors, nurses and pharmacists have invoked the right to refuse to provide reproductive healthcare — ranging from contraception, sterilisation and abortion and abortion aftercare, to artificial reproductive technologies and prenatal diagnosis.

But the global consensus reflected in United Nations treaties such as the Convention on the Elimination of All Forms of Discrimination against Women, the International Covenant on Civil and Political Rights and other regional charters and conventions, recognise that the freedom to practice religion can be restricted to protect the rights of others.

As debate continues about whether any group or institution has the right to refuse care, we must insist the overriding interests of women's health and right to control their own bodies prevails.

[Kamala Emanuel is a member of Socialist Alliance, a pro-choice advocate and a doctor working in reproductive and sexual health care.]

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