Women’s rights central to ruling on business owners’ religious beliefs and contraception

Opinion: Principle of separation of church and state blurred

Thu, Jul 3, 2014, 12:01

A ruling by the US supreme court on Monday implicitly declares that religious belief can trump scientific truth when it comes to women’s reproductive rights.

In a five-four decision, the judges found in favour of family-owned arts and crafts chain Hobby Lobby which had refused to provide employees with insurance cover for a number of forms of contraception to which the owners had moral objection.

The Obama administration had laid it down that insurance cover under the Affordable Care Act (“Obamacare”) should include the full range of medical services, including birth control, approved by the Food and Drug Administration. Hobby Lobby asked the court to strike down this element of the Obamacare Act. It was joined in the action by a Christian bookstore chain and a woodworking firm owned by a Mennonite family.

Hobby Lobby didn’t object to all contraception services but to methods it defined as abortifacient. It specified four procedures that either prevented implantation of a fertilised ovum or acted as emergency contraception – the “morning after pill”. Lawyers for the government argued that an overwhelming majority of doctors and scientists did not regard these procedures as abortion. Hobby Lobby president Steve Green retorted, “We believe life begins at conception.”

The company’s lawyers didn’t challenge the fact that the government had the great bulk of scientific opinion on its side. Their case was grounded in assertions that Obamacare violated a 1993 law guaranteeing freedom of religion and that this must apply to companies as well as to individual citizens since Congress had defined corporations as “people”. Thus, it was argued, Green’s religious convictions took precedence. The court limited application of its ruling to “closely held” companies – firms owned by a few people.

Hobby Lobby had been founded in Oklahoma in 1972 by David Green, estimated by Forbes now to be worth $5 billion. Green still owns and runs the company with his wife, daughter and son. (Whatever the merits of the case, Hobby Lobby would appear to come within any reasonable definition of “closely held”. However, lawyers are likely to earn considerable sums as cases involving more loosely structured businesses come before the courts for decision on whether they, too, qualify for inclusion in the category.)

Delivering the majority opinion, Justice Samuel Alito wrote: “The owners of the businesses have religious objections to abortion and, according to their religious beliefs, the four contraceptive methods at issue are abortifacients.” Alito insisted that the ruling applied only to the specific matters raised in the Hobby Lobby case and could not be extended to cover other medical procedures.

Dissenting opinion

In their dissenting opinion, the three female judges and Justice Stephen Breyer dismissed this in unusually trenchant terms. “How does the court divine which religious beliefs are worthy of accommodation and which are not?...Where is the stopping point?...Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage?” asked Justice Ruth Bader Ginsburg. And anyway, she summed up, a woman’s choice of method of contraception was “just not her boss’s business.”

The American Civil Liberties Union described the ruling as “a deeply troubling decision. For the first time, the highest court in the country has said that business owners can use their religious beliefs to deny employees a benefit that they are guaranteed by law.”

While women’s rights are central to the judgment, it may be of greater constitutional significance that the ruling blurs the principle of separation of church and state. If a religious person’s estimation of medical facts are upheld by the state despite being demonstrably wrong as far as science is concerned, where lies the distinction? The obvious US precedent is the “Scopes Monkey Trial” in Tennessee in 1925, in which a high school teacher, John Scopes, was convicted (the decision was later overturned) of violating a state law forbidding the teaching of evolution in state-funded schools. (There was no evidence Scopes had taught evolution: he deliberately incriminated himself so that the issue could be put to the test.)

It is worth noting that the view of Irish law on when a foetus reaches entitlement to the same moral status as a woman is some distance in advance of the position in the US as defined this week. In a 1999 case concerned with a woman’s desire to have embryos created by her and her now-estranged husband implanted in her womb, the Supreme Court declared: “The capacity to be born, or birth, defines the right protected. This situation, the capacity to be born, arises after implantation.”

On this specific and admittedly narrow issue, the Irish courts have shown themselves more liberal and attentive to science than their US counterparts, not, perhaps, because the Irish courts are rushing to embrace the future but because the American courts are sliding back into the past.

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