It is hard to underestimate the potential impact of the Supreme Court’s decision Burwell v. Hobby Lobby on women’s equality. That is the case in which the Court held that some for-profit corporations could refuse to provide health insurance coverage of birth control for their employees despite the federal contraceptive coverage law that required it. The Court’s decision, at heart, is rooted in a very old and very outdated misunderstanding about women. And that is the idea that women’s reproductive health is somehow “extra,” “different,” or “separate.” This fundamentally wrong assumption about women’s reproductive health has been used for ages to take away women’s rights. By reinforcing this dangerous approach to women’s reproductive health, the Court has put all aspects of women’s rights at risk. Here’s how it works:
When It Comes to Reproductive Health, “Extra” Has Often Meant “Unimportant”
For a long time, the law basically treated women’s bodies like men’s, only with a different reproductive system. In other words, the male model was the “standard.” Thus, women’s bodies were the standard plus something “extra.” (This of course ignores that fact that women make up the majority of the world’s population and that – as the minority – it was really men who were missing something. But, I digress.) And since women’s reproductive health was something “extra” it didn’t need to be protected legally by, for example, laws requiring insurance coverage of pregnancy care. In fact, it was argued, to have a law that required that would be unfair to men, because women would be getting something “extra” that men didn’t get. (In the case of pregnancy discrimination, we won that argument with the passage of the Pregnancy Discrimination Act of 1978.)
When It Comes to Reproductive Health, “Different” Has Often Meant “Worse”
The response to the “men’s bodies are the standard” theory is that men and women are different, and that legal equality means accepting that and treating men’s comprehensive health needs and women’s comprehensive health needs the same. Unfortunately, there are those who simply cannot fathom that two things that are different are equal. Instead, they use difference as an opportunity to treat one thing worse than the other. A prime example of this is the ongoing campaign to make abortion illegal. Abortion is a health service that only women can get (and that 1 in 3 women do get) – and it has been demonized and marginalized not only by abortion opponents but by some of society. Some courts have treated abortion as a lesser constitutional right than others — resulting, for example, in 33 clinics are shut down in one state overnight. We must be very wary of statements about reproductive health being different.
When It Comes to Reproductive Health, “Separate” Has Often Meant “Inessential”
How many times have you heard women’s reproductive health opponents say, “We’re just talking about birth control, not something central to women’s lives” or “the abortion fight is a side issue?” Or, worse, “I support women’s rights, just not access to abortion.” Women’s reproductive health is central to women’s lives. Period. If you take away our access to it, you take away an essential right that impacts every aspect of our existence. Access to reproductive health care has been proven to improve women’s ability to participate in society – it improves our ability to get an education, get a job, get fair wages, get away from domestic violence, and have healthier lives.
This brings us back to Hobby Lobby. The contraceptive coverage provision was added to the law after women’s rights champions in the Senate realized that the list of preventive services that the law required be covered did not include birth control and some other reproductive health services. I guess those who made the other lists saw birth control as something “extra” for women and not important enough to include?
In the Supreme Court’s decision, the majority specifically framed birth control as something “different” when it distinguished birth control from other health care services. In fact, during the oral argument in the case, the attorney for Hobby Lobby actually said that birth control was different. And, in this case, the fact that the Court saw birth control as different was the reason it determined that it could treat birth control worse than other preventive health services by allowing employers to refuse it.
And, finally, the Court refused to discuss the government’s compelling interest in protecting women’s equality in the case – because if it had, it would have had to acknowledge the central role that birth control access plays in women’s lives. Instead, the Court could discuss birth control as something that is separate and inessential. And, it is important to note that the Court also separated birth control from other health services under the law – it is no longer on the list of preventive services that all employers have to cover. This brings us back to the beginning and makes birth control coverage “extra” again in some employer plans.
In the post-Hobby Lobby world, we are all carefully watching the courts and the legislatures to see how reproductive health opponents will try to use this theory to take away women’s rights in the future.