The Supreme Court’s ruling in the Hobby Lobby case, which allows some for-profit businesses to claim a religious exemption to the federal mandate requiring employers to provide insurance benefits that fully cover contraception, has generated intense emotion on both sides.
Ilyse Hogue, the president of NARAL Pro-Choice America, blasted the ruling as “a direct attack on women and our fundamental rights” from “five male justices.” Others hailed the ruling as a resounding win for freedom of conscience. What’s largely missing from the debate is the voices of feminists who believe it’s dangerous to tie women’s freedoms to government-mandated benefits.
It’s unclear how broad the ruling’s effects will be. The case applies to a specific type of business: Corporations with a limited number of shareholders such as Hobby Lobby, a crafts store chain. The court’s majority has held that, since religiously affiliated non-profits such as schools and charities are partially exempt from the contraceptive coverage mandate (which they believe would force them to pay for abortion-inducing drugs and devices), family-owned businesses are entitled to the same exemption.
Framing the issue as a “war on women” is misguided and polarizing. The fact that the court’s three female justices dissented, along with Justice Stephen Breyer, is a function of ideology rather than gender. It is also worth noting that Justice Anthony Kennedy, who provided the swing vote in the case, is a strong supporter of women’s rights and reproductive rights. And there are many women who believe the birth control mandate infringes on religious liberty — among them Hobby Lobby co-founder Barbara Green. To suggest that those who share this view are woman-oppressing Neanderthals if male and dupes of the patriarchy if female is hardly conducive to civilized discourse.
Access to contraceptives
Few people dispute that birth control is an essential benefit for most reproductive-age women. But does this mean that women are entitled to coverage that offers contraception at no out-of-pocket cost? No employer is claiming a faith-based right to forbid female employees to use birth control, only the right not to subsidize the use. While the mandate’s supporters claim singling out birth control for denial of coverage is sex discrimination, it is worth noting that federal law does not require any contraceptive coverage for men.
For many feminists, mandatory birth control coverage is probably less about money than about principle: Establishing that a woman’s right to control her fertility is so fundamental that its exercise should be fully guaranteed by the government. But there is another, libertarian feminist way to look at this issue: The view that it’s hypocritical for women to tell the state, “Keep your laws off my body!” and then demand laws that make the state underwrite your reproductive choices.
Birth control affordability is a very real problem for many women. Under the court’s ruling, the government can devise other ways besides the employer mandate to ensure such access. But there are other, freedom-based ways that do not depend on taxpayer largesse.
For one, we should look into making oral contraceptives available over the counter — an option backed by many medical professionals. For women (and men) who struggle with birth control expenses, privately funded low-cost or free reproductive services could be the solution. Planned Parenthood and other reproductive-rights groups could play a more beneficial role by offering direct help to those who need it than by spending millions on lobbying for laws and government subsidies. It would probably be less costly — and less divisive.
Cathy Young is a regular contributor to Reason magazine and the website RealClearPolitics. She wrote this for Newsday.