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7th Circuit Decision in Birth Control Case: Sex, Women, and Stigma

Late last Friday, the 7th Circuit ruled in favor of two for-profit corporations and the individuals who own them in their challenge to the ACA’s contraceptive coverage rule. The court concluded not only that the rule substantially burdens the religious exercise rights of the company’s owners but also that the rule substantially burdens the independent religious exercise rights of the for-profit corporation. This is the first decision to find that both the for-profit corporation is a “person” capable of exercising religion and that the individuals who own it can challenge a rule that applies to their company (and not to them) under RFRA.

Two judges reached that conclusion over the strong dissent of Judge Ilana Rovner. At several points, she suspects there’s something fishy going on here with the birth control rule.  And it has something to do with women, sex, and stigma.  

In noting that the ACA requires employers to cover many different services—not only birth control—she questions why the birth control rule is so different. Parenthetically, she writes:

I suspect as a matter of public discourse, if not judicial treatment, the fact that contraceptive care implicates both sex and women, also has something to do with the reason why the contraception mandate seems different from other provisions of the ACA [PDF].

Hmm, I’ve been a little suspicious about that too. . . .

So, Judge Rovner’s dissent masterfully dissects the various claims against the birth control coverage rule. For example:

In considering plaintiffs’ suggestion that the government should just provide a birth control-only “public option,” Judge Rovner writes that it’s beside the point that the “public option” would be infeasible and less effective than including birth control in an employee’s health insurance. The whole point of including coverage for women’s preventive services—birth control among them—was to recognize women’s preventive services as health care. As Judge Rovner put it the point

was to redress the history of gender-based inequalities in healthcare and health insurance. Carving out from the standard insurance coverage . . . a type of healthcare that a panel of experts have determined to be vital to the health needs of women, and saying it must be provided for separately, reinforces the very disparities that motivated [the rule] [PDF].

Moreover, “the segregation of this form of healthcare from standard insurance coverage will stigmatize both these services and the employees who wish to access them” [PDF]. 

And it is at this point when I am reminded of Judge Rovner’s parenthetical insight: doesn’t a boss’ opposition to insurance coverage of birth control—a health benefit that has been so critical to women’s full participation in society and the workplace—kick women down a notch, or a few? Of course it does. Excluding birth control from employee insurance coverage limits women’s access to a health care service that 99% of them use at some point in their life, and stigmatizes both the use of birth control and the women who use it.

Judge Rovner points out that while the bosses frame their religious objection as including birth control in employee health plans, the real objection is to women’s decision to use birth control. Indeed, as she points out, the bosses object to birth control for contraceptive purposes—but not for non-contraceptive purposes. So, it is clear that the “objection turns not on the coverage in isolation but the decision to use covered contraceptives for a particular purpose, i.e., to prevent procreation.” [PDF] (emphasis added). If it wasn’t clear before, this puts the point squarely: these cases are about bosses imposing their religious objections on their employees.

Some people may see bosses using their objections to insurance coverage of birth control as different—as okay—in some way because it’s about religiously-motivated beliefs about women and sex.  But what about next time? Religious objections to coverage for routine care associated with stem cell therapy for an employee with ALS/Lou Gehrig’s Disease? Religious objections to employee health insurance coverage for any medical care from health providers? Religious objections to a gay parent taking unpaid leave attend the birth of and to bond with his child?

These are Judge Rovner’s examples [PDF]. And she has some compelling thoughts about the road down which the 7th Circuit’s majority decision would take us. . . .

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