Family Planning: Battles On The Homefront

I’ve spoken out a lot on this blog in favor of family planning.  I’ve been meaning to write something up about the importance of international family planning-~-and it’s coming, so keep your eye on this blog.  But in the meantime, it’s time to critically examine what is happening on the homefront, because the US is in the middle of a big fight about family planning…and it’s one that the feminist movement needs to win.

Let’s start with Michigan, shall we?  Last week, a new law went into effect that dropped abortion coverage from any policy currently including it.  There are now only seven insurers in the state of Michigan which cover abortion services, and they only offer the coverage through employer-sponsored plans.  This means that individuals cannot purchase these policies on their own.  This is problematic, because the law already forces women* (or people who can be pregnant) to purchase this kind of insurance in advance, without knowing if they will become pregnant due to unforeseen circumstances.  There are also no exceptions for cases of pregnancy due to rape or threats to the health of the mother.  Proponents of the bill claim that they are attempting to prevent individuals from having their money go towards procedures they do not support, and note that very few abortions are currently covered by insurance-~-more are paid for out of pocket.  But opponents of the bill have pointed out that letting insurance fail to cover abortion procedures can make them cost-prohibitive for women* who need them, and that’s a rights violation.

But while supporters of people’s rights to bodily autonomy speak out against this law in Michigan, supporters of family planning are also concerned about a case pending with the Supreme Court.  The owners of Hobby Lobby, the craft store chain, and Mardel, a Christian bookstore chain (both are owned by the same individuals), as well as the owners of Constenoga Wood Specialties Corp, have filed suit to prevent the company from having to meet the contraception mandate laid out by the Affordable Care Act.  The mandate, which includes a religious exemption already, was previously challenged in court, though the challenge was more based on the plaintiff’s desire not to have to file for that exemption.  Hobby Lobby et al., however, has no religious affiliation-~-its owners are claiming that their own religious beliefs will be violated if they are forced to cover certain forms of contraception.

Federal appeals courts have thus far been divided on the issues presented.  The Washington court of appeals ruled in November that while a company can’t bring a complaint, its owners can.  The Obama Administration’s stance is that neither of those parties have the legal grounds to challenge the mandate, arguing that it furthers a compelling government interest.  The plaintiffs argue, however, that they maintain their religious rights even though they operate these businesses, and are focused on a First Amendment argument to try to strike down the mandate.

Folks, I’m not a lawyer, but let’s talk about what’s going on here, shall we?

Recently, Slate Magazine published a great online article about this case discussing corporate personhood and the reasons why Hobby Lobby should lose their suit when the Supreme Court hears arguments about it next week.  The author, Adam Winkler (an expert on constitutional law), argues that corporate personhood was established in order to give corporations legal rights and legal standing, separate from their owners.  This is significant, because what the plaintiffs in the upcoming case want is for the Supreme Court to “pierce the corporate veil” in order to extend their own personal religious preferences to the company, which is not what corporate personhood is supposed to legally imply.  He argues also that corporations are only meant to have the rights necessary to their operations-~-that is, the right to property, the right to sue in court to defend other rights, the right to assembly, the right to some free speech…but for a for-profit corporation, the argument in favor of religious rights just doesn’t hold up.

The second thing I want to talk about, however, is compelling governmental interest.  The government certainly has a case that mandating contraceptive access is a compelling state interest.  Contraception is used by millions of people for non-contraceptive purposes, but on top of that, the state has a compelling interest to reduce the number of unwanted births.  Children born to families who cannot afford them cost the system millions of dollars each year, and eventually need access to many social services.  Pregnancy can cause medical complications that low-income individuals need covered through programs such as Medicare.  The ultimate conclusion, then, is that the state has both a social and an economic interest in reducing unwanted pregnancies and as such, has an interest in requiring contraceptive coverage.  Even if you wanted to apply other standards of judicial review to this issue, the reality is that requiring insurance coverage is likely the most narrowly tailored approach and the least restrictive means to accomplishing this goal-~-that is, it’s the least rights violative.  If the government is forced to pay for this directly, then all taxpayers, including those who work for religious institutions, would be forced to contribute.  Requiring private companies to cover this through insurance is the least problematic way to address the issue.

The third thing I want to talk to you about is competing rights claims and a right to privacy.  Consider this: private companies cannot stop individuals from purchasing birth control or condoms with the money they earn through their paychecks, even if it violates the owners’ religious preferences.  The Supreme Court has previously ruled, first in Griswold v Connecticut and then in Eisenstadt v. Baird  that both couples and individuals had a right to privacy extending to contraceptive usage.  This was the same basic precedent that went into the privacy ruling in Roe v Wade.  If that’s the case (and legally, it is) then individuals who seek contraceptive coverage have a competing rights claim in favor of the mandate.  All the mandate does is protect that right.

Like I said, I’m not a legal scholar or a lawyer, but I’d say there are definitive reasons to rule against Hobby Lobby and the other plaintiffs.  This case will be heard by the Supreme Court on March 25.  If you’re in DC and you’re free, consider stopping by-~-if not, I’d keep an eye on the news.  This ruling could have real implications for religious freedom and the rights of corporations vs the rights of private persons in the United States.

 

 

 

 

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~ by Randi Saunders on March 19, 2014.

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