No Contraception? No Equality

The Supreme Court should not abridge women’s right to health care.

THE Supreme Court will hear a second challenge to the Affordable Care Act’s contraceptive mandate on Wednesday in a case called Zubik v. Burwell. The plaintiffs want to extend the 2014 ruling in Burwell v. Hobby Lobby Stores, which recognized the right of certain for-profit companies to a religious exemption from the act’s requirement that employers’ health plans provide contraceptive coverage.

This time, the objection comes from a handful of religious nonprofits that argue that the government’s religious exemption itself infringes on their religious freedom. The groups contend that filling out a one-page form or sending a letter to the government to get the exemption amounts to “facilitation of sin” because it starts a process that ultimately allows employees to get contraception though a third party.

This case is one of several recent conflicts in which one side seeks to use its religious objections to undermine laws that promote equality. The position taken by the plaintiffs in Zubik recalls the refusal last year by a Kentucky county clerk to issue marriage licenses to same-sex couples after the Supreme Court’s marriage-equality ruling.

At first, Zubik might not look like the Kentucky showdown, but there is a similar dynamic at play. The real issue at stake in reproductive rights cases, as Ruth Bader Ginsburg put it in 1978, paraphrasing another scholar when she was herself a professor, is whether women are “to have the opportunity to participate in full partnership with men in the nation’s social, political and economic life.”

Access to reproductive care is central to equality between the sexes. By requiring employers’ health plans to provide contraceptive coverage, the Affordable Care Act represents an important legislative link between sex equality and reproductive rights. Before it was passed, women were paying more for health care than men largely because of the cost of reproductive health coverage.

Congress made a deeper commitment to anti-discrimination rights in health care in another provision of the Affordable Care Act that is not under review in this case. Section 1557 gives patients an opening to sue in federal court if they experience discrimination at the hands of health care providers, insurers or other related programs. In defining the forbidden forms of sex discrimination, the law implicitly includes pregnancy discrimination. By doing so, the provision connects women’s reproductive capacity to equality between the sexes.

the Supreme Court has repeatedly failed to see how women’s access to reproductive care has implications for their status as legal equals. This is partly, perhaps, an accident of history: The court considered contraception before it articulated a constitutional right to be free from state-sanctioned sex discrimination. This may be one reason the court originally struck down state bans on contraception through privacy-based reasoning rather than equality-based reasoning.

But federal laws, repeatedly repudiating the court’s limited view of sex equality, emphasize that sex discrimination is exactly what’s at stake. The back-and-forth started a few years after the court’s rulings in Geduldig and Gilbert, when Congress passed a law to ensure that federal workplace protections defined sex discrimination to include pregnancy discrimination. This more robust definition of sex discrimination also applies to students through regulations under Title IX. The Affordable Care Act is the latest law in this tradition to recognize the implications for sexual equality of reproductive care.

Difficult questions surely arise when reproductive rights conflict with religious beliefs. But as it weighs religious objections to contraception coverage, the Supreme Court should recognize that it is only when women’s health care rights are fully recognized by the law that women can participate in society as equals.

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