Tuesday, January 16, 2018
Editorials

Editorial: Discrimination under guise of religious liberty

Four years after treating corporations as people and triggering a flood of unlimited political contributions, the U.S. Supreme Court ruled for the first time Monday that some corporations can cite religious beliefs and avoid providing health insurance coverage for contraception. The court's 5-4 decision is as bad for women and their right to choose how and when they use birth control as the earlier court opinion was for the political system. It allows the owners of for-profit corporations to impose their religious views on their employees, and it opens the door for further discrimination under the guise of religious freedom.

Justice Samuel Alito, writing for the conservative majority, went to great lengths to argue that the ruling is limited in scope. It applies to "closely held corporations,'' and Alito said he cannot imagine large, publicly traded corporations invoking the same protections under the Religious Freedom Restoration Act of 1993 to avoid providing coverage for contraception. He said the decision focuses solely on contraceptives and dismissed concerns that these new religious protections could be used by corporations to deny coverage for vaccinations or blood transfusions, or to discriminate against minorities. But there is little doubt this new religious right for corporations will be exploited by other businesses looking to save money, deny other health coverages or defend discriminatory hiring practices.

After the Affordable Care Act became law in 2010, the Obama administration adopted rules regarding preventive coverage that require businesses offering health insurance to cover 20 forms of birth control without a co-payment. Hobby Lobby, a chain of craft stores that includes nearly 30 outlets in Florida, argued the company should be exempt from the requirement because four of the birth control methods violated the religious beliefs of the family members who own the company. Conestoga Wood Specialties, a Pennsylvania cabinetmaker, made a similar argument. The court sided with the companies. It found there is a compelling government interest in providing access to contraception, but that this was not the least restrictive method to provide it and created an illegal substantial burden on the exercise of religion by the companies.

The court used the Obama administration's efforts to accommodate religious institutions and religiously affiliated nonprofits to undercut the administration's argument in this case. Alito noted that churches are exempt from the birth control requirement and said the government could pay for coverage for employees of private corporations that opt out. Or, he said, Hobby Lobby and other businesses could use the workaround the administration has used with religiously affiliated nonprofits, requiring insurers to provide the coverage outside the nonprofit health care plan and at no cost to the employee. But taxpayers should not have to pay for birth control coverage simply because corporations refuse for religious reasons. And there is no reason that privately owned for-profit companies should be treated in the same manner as nonprofit, religiously affiliated groups such as schools and charitable organizations.

Justice Ruth Bader Ginsburg, in a powerful dissent, called the majority opinion "a decision of startling breadth'' and said the Religious Freedom Restoration Act was intended "to serve a far less radical purpose.''

"Until this litigation,'' she wrote, "no decision of this Court recognized a for-profit corporation's qualification for a religious exemption from a generally applicable law … for the exercise of religion is characteristic of natural persons, not artificial legal entities.''

Now the court has created this new religious protection for corporations, and the cost likely will be far higher than the conservative majority acknowledges. The first to pay will be thousands of women whose reproductive rights will be treated differently depending upon where they work, and who will have fewer choices in making some of their most personal decisions.

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