Hobby Lobby opens a new front in the ‘War on Women’

The next round in the political battle over the Supreme Court’s decision in Burwell v. Hobby Lobby could come as early as next week, according to Sen. Harry Reid (D-Nev.), when the Democratic Majority Leader intends to hold a vote on the “Not my Boss’s Business Act.” The legislation, introduced by Sen. Patty Murray (D-Wash.), would reverse the religious exemption granted to Hobby Lobby when the Court ruled that a “closely held” for-profit corporation could impose its “sincere religious beliefs” on female employees — regardless of their personal beliefs or medical decisions — by refusing to cover four forms of contraception it deems morally objectionable. 

It is a sad fact that women now need legislation to protect their access to health care from the Supreme Court. It was only a few years ago that then-House Leader Nancy Pelosi declared that, with the passage of the Affordable Care Act, “being a woman will no longer be a pre-existing medical condition.” It was a novel idea — that women should be treated equally under the new law, no longer unfairly forced to pay more for their health care with practices like gender rating, which once allowed insurance companies to charge women higher premiums. 

By requiring insurance companies to provide contraceptive coverage at no additional charge, the Affordable Care Act finally leveled the playing field for women. “Indeed, in passing the ACA, Congress recognized that excluding coverage of women’s preventive health services, including contraception, constituted discrimination against women,” the National Women’s Law Center wrote in a brief to the Court opposing Hobby Lobby’s position. “Before the ACA went into effect, women disproportionately bore the costs of reproductive health care, and these high costs negatively affected women’s health and well-being, as women often lacked access to or forewent necessary health care to keep costs down.”

While these were positive steps forward for women’s equality, the majority opinion in the Hobby Lobby case represents a step backward. Notably, the opinion didn’t even discuss the effect the Affordable Care Act had in addressing discrimination against women. Nor did it discuss the potential damages to those hard-fought gains, such as women again having to pay more than their male colleagues for health care.

As Justice Ruth Bader Ginsburg pointed out in her dissent, women of childbearing age already spend 68% more in out-of-pocket health care costs than men. That’s money that isn’t being spent on food, or rent, or transportation to a job. It’s one reason, Ginsburg notes, why about a quarter of women decide not to get an IUD (one of the forms of contraception objected to by Hobby Lobby) after finding out the cost, which is “nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”

Contraception is a fact of life for millions of women of reproductive age, 62% of whom are currently using a contraceptive method. More than 99% of women ages 15-44 who have had intercourse have used at least one form of contraception. Yet the Supreme Court’s majority opinion focused instead on the rights of corporations. In fact, in a decision with significant implications for women’s health, the words “woman” or “women” appear only 13 times in 48 pages. Women’s well being is never discussed. 

It’s unacceptable that in 2014, the Supreme Court would legalize a form of discrimination against women and fail to fully examine the impact of its decision on only female employees. So while the “Not My Boss’s Business Act” is not expected to pass in the Senate next week, it will force members of Congress to go on the record as either supporting or opposing women’s equal access to contraception. It sets up a new front in the “War on Women” that Democrats can and should use to motivate women voters in the 2014 midterm elections.

Karen Finney is political commentator for MSNBC, hosted the show “Disrupt with Karen Finney,” and is a member of the board for NARAL Pro-Choice America.