By Kurt Gonska on March 24, 2014

By Jill Filipovic, originally published in the Guardian

The questions sound absurd: is a for-profit corporation a person with religious beliefs? Should the religious beliefs of your employer dictate what kind of medical care you get? 

Yet these are the questions before the Supreme Court this week, and given where some of the justices stand – that a corporation is a person (see: Citizens United), that a woman's reproductive choices are up for debate (see: the "partial-birth" abortion ruling) – there may be many more absurdities across America after Tuesday’s oral arguments on Obamacare’s contraception mandate.

 

There’s a real chance that the court could buy the most absurd argument of all: that a company, owned by a person who believes that some forms of contraception are morally wrong, can refuse to comply with federal law – and can refuse to provide comprehensive insurance coverage to employees. If the justices side with Hobby Lobby and Conestoga Wood – a chain craft store and a furniture maker, both owned by men who oppose some forms of birth control – then you can prepare for a chain reaction of discrimination.

Those of us who care about women’s equality, workers’ rights and legal protections for minority groups – there are a lot of us – are nervous. So I called up Sandra Fluke, the reproductive justice activist who is now running for state legislature in California, for a preview.

“Not only does this case potentially undermine the protections for affordable insurance coverage for contraception, but it could undermine a whole host of protections against discrimination – race, sexual orientation, gender,” Fluke told me late last week. “We’ve seen people step forward and say it: ‘I shouldn’t have to pay men and women equal wages because of my religion. I shouldn’t have to serve LGBT folks.’”

This week’s cases are about contraception. But as Fluke points out, the issues will go far beyond corporate personhood, insurance requirements and the healthcare law – no small topics of debate themselves. The justices are now prepared to set in stone the it’s-my-religion defense of wholesale discrimination, the groundwork for which has been set across the conservative spectrum for years.

“Right-wing groups pushing religious liberty at the expense of women’s health,” Fluke says, “use what should be a shield for one person’s individual personal beliefs – and a legal protection of those beliefs – to try to turn that into a sword to impose those values more broadly and undermine other peoples’ ability to make their own medical choices.”

Freedom of religion is carved into the Constitution, and the Affordable Care Act allows churches and other houses of worship a kind of out from the contraception mandate. What happens if that loophole gets undermined by for-profit companies? What happens if the Supreme Court opens up the law of the land to outright bigotry disguised as “freedom”?

We saw hints last month in the laboratories of democracy, where statehouse politicians introduced bills that claimed to protect religious liberty by allowing wide discrimination against gay, lesbian, bisexual and transgender people. In Kansas, a failed bill would have allowed owners of hotels, restaurants and other entities to refuse to serve or accommodate gay people. And we don’t have to talk about Arizona again, do we?

Some powerful religious people also believe that women should be in charge of the home and shouldn’t work for pay. Do we really want to open the door to the wholesale refusal to hire women – or the right to pay them less?

Religious beliefs around medicine vary widely, too: if a person believes HIV is God’s punishment or that HIV doesn’t cause Aids, should she have the right to refuse to buy insurance that covers HIV for her employees? If a company is owned by Jehovah’s Witnesses, does it not have to cover blood transfusions? If it’s owned by a Scientologist, can it exclude insurance coverage for mental health care?

Oh, and Hobby Lobby and Conestoga Woods have identified a handful of contraceptive methods that they say kill fertilized eggs. That’s probably not true, according to scientists. But the veracity of beliefs don’t matter very much at the Supreme Court – just that religious individuals sincerely hold them.

The same conservative hostility to women that underlies the contraception mandate cases rained down on Fluke when she testified before Congress about contraception access. For her efforts, Rush Limbaugh called her a slut two years ago. Her name remains attached to anti-Obamacare talking points – Sandra Fluke wants you to pay for her birth control is standard conservative blog fodder to this day.

Those attacks put Fluke on the map as a young advocate, and now on the road to office in those very same laboratories of democracy. From that vantage point, she's heard from women all over the country who see how cases like Hobby Lobby are taking us backward.

“A lot of folks have said that they’re surprised we’re still fighting about this,” Fluke tells me. “They’re surprised that we’re still fighting battles they thought we had won.”

While Fluke says she’s less surprised at the ongoing birth-control battles, her position as an inadvertent contraception ambassador has made her realize just how fringe the anti-contraception arguments actually are – even if those making them are particularly loud, and even if the fringe ends up becoming a legal reality.