Imagine if your boss rifled through your purse to see if you were taking the pill. Or, in your annual review, your supervisor mentioned that he was disappointed that you used IVF to get pregnant. What if you had to sign a pledge to only use natural family planning in order to get the job?
It may sound extreme, but that is what a Supreme Court case heard this session is going to decide: whether or not your employer has the right to interfere with your personal life when it comes to reproductive health. Zubik v. Burwell is the latest challenge to the no-cost birth control benefit for employees under the Affordable Care Act (ACA). It's a consolidation of seven cases brought by nonprofit religious organizations and dioceses pushing for more exemptions after the disastrous Hobby Lobby v. Burwell decision of June 2014. That suit, lodged by the for-profit craft chain, elevated a fictional corporate "conscience" over the individual workers'.
The Catholic hierarchy was a major behind-the-scenes player during the Hobby Lobby case, and now it's front and center with Zubik, but the messaging is essentially the same: The ACA no-cost birth control benefit violates its religious freedom. But there is something a little more worldly at stake.
Catholic healthcare and nonprofit organizations are multi-million dollar businesses. They have large investments with federal contracts that should bring some expectation of playing by larger society's rules. But in 2011, the United States Conference of Catholic Bishops (USCCB) created the Ad Hoc Committee for Religious Liberty for the express purpose of rewriting policy so they could have their federal dollars and discriminate, too. One of the six concessions the bishops wanted from the government was for any employer to be able to deny contraception coverage to employees by citing "religious freedom." As Anthony Picarello, general counsel for the USCCB, put it, that included everything from a religious organization to a "Taco Bell."
The bishops' aggressive lobbying pressured the Obama administration to create a loophole exploited by organizations -- religious or not -- to claim exemptions from the ACA's contraceptive benefit. Still, it was not enough for the bishops and their allies, and it opened up the door for other claims like Zubik v. Burwell. The plaintiffs in Zubik allege that even the expectation to fill out a form notifying the government that they do not plan on offering contraceptive coverage violates their religious freedom. There is no room in their myopic view of religious freedom for women's individual health needs.
If Zubik wins, it could be disastrous for the hundreds of thousands of employees at Catholic nonprofit organizations, the 163,431 lay teachers at Catholic schools and the 639 Catholic hospitals that employ more than 516,410 full-time employees and 220,795 part-time workers. For the Catholic colleges and universities in the United States, the loss of benefits could be tremendous for employees and students. Without regular contraceptive access, life becomes more expensive and more unpredictable. And these Catholic businesses will sustain the illusion that they operate as a city upon a hill, locked away by doctrine but sustained by federal dollars and bevy of lobbyists.
And the irony is, a win for Zubik will actually be catastrophic for real religious freedom. At stake in these cases are the religious liberty rights of all workers in the United States -- their rights to live their lives according to their own beliefs and consciences, and their freedom from having their employers' beliefs forced upon them. It will disrespect the two essential ingredients for religious freedom: freedom from and of religion.
The Supreme Court must answer a critical question: will the religious liberty of employees and their dependents be respected, or will employers be allowed to trample upon their consciences and lives? Will the Catholic hierarchy be allowed to operate their businesses with discriminatory policies and keep their federal contracts? Hopefully the Supreme Court will get it right this time, because women's ability to make their own contraceptive decisions should never have been on trial to begin with.
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