It's hard to believe that 40 years ago doctors in America wereprosecuted for providing women with birth control, and women riskedjail for using it. On June 7, Americans -- and American women in particular -- onceagain celebrate the anniversary of the Supreme Court's 1965decision in Griswold v. Connecticut . That seminal decision outlawed efforts to jail any married woman"who uses any drug, medicinal article or instrument for the purposeof preventing conception" -- an action that would beincomprehensible today. Maybe jail time for contraceptive use is athing of the past, but there is a renewed effort now to makecontraception just as difficult to obtain as it was pre- Griswold. |
Perhaps the most important aspect of the 1965 decision was that itaffirmed a right to privacy that protects the ability ofindividuals to make decisions about reproductive matters accordingto their own conscience, although that right was at first limitedto married couples. Most of us now take this right for granted, and certainly, the useof contraception is ubiquitous. Yet the principle of Griswold is under attack as never before, caught up in an argument aboutthe ability of employers to impose their views of contraception ontheir workers, and the ability of women to assert their ownreligious liberty rights free of discriminatory treatment by theiremployers. The latest assault comes in response to the recognition by the U.S.
Department of Health and Human Services (HHS) thatcontraception is an integral part of women's preventive health careand that, under the Affordable Care Act, employers who offer healthinsurance would now be required to cover contraceptive serviceswithout added cost to women. Strictly religious employers would beexempt. Despite the vocal opposition from anti-birth-control religiousleaders and lawmakers, this policy is hardly a stretch. After all,there has been a dramatic expansion of legal rights for women inthe last five decades through legislation and court cases,including the right to be free of discrimination on the job. Allemployers of a certain size were covered by these laws, whether ornot they had a religious affiliation.
Only employers that werestrictly religious in nature, such as churches, mosques, andsynagogues, were exempted. Many states also imposednondiscrimination requirements, and in keeping with the state powerto regulate insurance, those states required employers to offerinsurance that included contraception. But now, a legal principle meant to protect employees was turned onits head, and employers asserting a religious affiliation claimedthat it was their rights that were under attack. In Congress, themovement spread, and legislation was introduced and voted on that would allow any employer totailor their employee insurance plan to deny coverage of anyhealth-care procedure to which that employer had a personalobjection.
Lost in the maelstrom is the original idea of Griswold and the decisions that followed, that individuals have a right toaccess birth control. The progress made over the decades -- therecognition that women's unique health needs could not be ignored-- went by the wayside. Lost as well is the idea that women havereligious liberty rights at stake, and that their ability toexercise them ought not to be limited by their employers. Thedebate too often has been framed as pitting employers' religiousrights against women's health, as if women have no liberty atstake. Case in point: HHS devised an accommodation that shifts the cost burden for including contraception away fromreligiously affiliated employers and puts it on insurance companies-- literally giving objecting faith-affiliated employers an out --but that hasn't been enough for them.
Dozens of lawsuits have beenfiled to overturn the HHS decision -- some by states, but most byCatholic institutions, but they all have it backward. Employers' beliefs on racial equality, the role of women in theworkplace, or on the requirement to ignore religious affiliation inhiring have never been a reasonable defense against a charge ofdiscrimination. When it comes to public policy, the personal orinstitutional religious beliefs of employers cannot become a legalbasis for making employment decisions. We have come too far forthat. In truth, the accommodation made by HHS goes beyond what thelaw and the Constitution require.
If women's right to usecontraception is to mean anything at all -- if their individualright to make their own health decisions based on their ownreligious and ethical beliefs is to be a reality -- those rightsmust be protected by law from the interference of their employers. Follow Nancy K. Kaufman on Twitter: /NCJWCEO.
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