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The Supreme Court’s One-Two Punch Against Women’s Health: McCullen And Hobby Lobby

Memo Pad Politics

The Supreme Court’s One-Two Punch Against Women’s Health: McCullen And Hobby Lobby


The Court’s rulings place more barriers, both physical and financial, between U.S. women and basic health care.

In the last week the Supreme Court announced two decisions that could dramatically change the landscape of women’s health access in the United States. It will be some time before we know the full impact of McCullen v. Coakley and Burwell v. Hobby Lobby, but in the short term two things are for sure. The decisions will make it more difficult and less safe for many women to get the care they need, and they will undoubtedly embolden a conservative movement that hardly needs fortification.

The last three years brought record setbacks to women’s health and rights. More abortion restrictions were enacted between 2011-2013 (205) than in the entire previous decade (189). Today nearly 90 percent of U.S. counties do not have an abortion provider and more than 56 percent of U.S. women live in a state hostile to abortion. In many states the procedure has essentially been regulated out of existence. But it’s not just abortion rights that are under attack. The days of conservatives being “anti-abortion” but pro-family planning are long behind us. Today’s conservatives view birth control as the gateway drug to abortion, and regulate it with the same zeal they once saved for abortion.

Restrictions to Title X funding are closing publicly funded clinics around the country. Those clinics serve to provide reproductive health services to low-income and young women, and the majority do not even provide abortions. There is reason to fear that other conservative states are following the lead of Texas, where thousands of women are dealing with the consequences of a complete lack of access to basic health care thanks to lawmakers who have closed a record number of clinics.

Making matters worse, today 24 states are not participating in the Medicaid expansion originally mandated by the Affordable Care Act (ACA), leaving two-thirds of poor blacks and single mothers and more than half of low-wage workers uninsured.

It’s against this backdrop that we have McCullen and Hobby Lobby, two decisions that are effectively a one-two punch to U.S. women. They allow employers to erect financial barriers to contraceptive choice and embolden protesters to serve as physical and emotional barriers to women’s basic health care.

In McCullen, the Court struck down as a violation of free speech a Massachusetts law that provided a 35-foot “buffer zone” around clinics that provide abortion. The law was created to protect patients entering clinics, and many states have similar regulations in place. It’s unclear what will happen to those other buffer zones. It’s also more than slightly ironic that the Supreme Court, the very body responsible for upholding freedom of speech, has a 100-foot buffer zone that is still intact.

Protesters will feel vindicated in their attempt to persuade, intimidate, threaten, and terrorize women from accessing care to which they are constitutionally guaranteed. Last weekend the Boston clinic at the heart of the McCullen case saw a threefold increase in protesters. That’s just in Massachusetts. Clinics in more conservative states regularly see hundreds of protesters on a given day.

Hobby Lobby was just one of more than 50 companies (supported by organizations like the Beckett Fund for Religious Liberty) that took issue with the ACA’s “contraceptive mandate,” the requirement that all employer-based health plans fully cover, without cost sharing, all FDA-approved methods of contraception. These companies filed claims against the mandate, arguing that intra-uterine devices (IUDs) and emergency contraception (EC) constitute abortion and therefore being required to provide coverage for those methods was a violation of their religious liberty. Never mind that by all accepted medical standards those methods prevent, not terminate, pregnancy. The Court ruled in favor of Hobby Lobby, allowing “closely held” companies – generally understood to be those having more than 50 percent of the value of their stock owned by five or fewer individuals – to refuse coverage of certain contraceptive methods.

So, what happens now? Well, most women who work for Hobby Lobby and other such companies will no longer have access to the contraceptive method of their choice. They will have to decide if they want to pay for those methods out of pocket or go to a clinic where they can receive subsidized care, if they are lucky enough to have access to one. This will place additional and unnecessary pressure on an already embattled public health infrastructure.

The majority claimed the Hobby Lobby ruling was narrow and would not have the sweeping consequences suggested in Justice Ginsburg’s scathing and on-point dissent. I’m not convinced. According to Harvard Business Review, 90 percent of U.S. companies are considered closely held, and those companies employ more than 51 percent of U.S. workers. There are already at least 80 other cases waiting to follow in Hobby Lobby’s footsteps. Given conservatives’ strategic organizing and employers’ willingness to carry the anti-reproductive rights, anti-Obama, anti-ACA banner, others will surely join the cause.

For the time being, the ACA – and the mandate – remain intact, even if somewhat fractured. We should continue to fight for the full implementation of the ACA, a historic – and by all measures successful – piece of legislation that is advancing the vision FDR articulated more than 70 years ago when he called for a Second Bill of Rights. That vision included medical care to allow all Americans to achieve and enjoy good health.

In falsely pitting freedom of speech and religion against women’s rights – as if women don’t also have rights to those same freedoms – the Supreme Court has given momentum to an already fast-moving train. Conservatives will only have more resolve to continue tearing down the building blocks of women’s health and rights. It’s going to take a lot to stop them. A lot of outrage, a lot of action, and a lot of engaged voters committed to standing up for women’s rights. Here’s hoping we can make that happen.

Andrea Flynn is a Fellow at the Roosevelt Institute. Follow her on Twitter @dreaflynn.

Cross-posted from the Roosevelt Institute’s Next New Deal blog.

The Roosevelt Institute is a non-profit organization devoted to carrying forward the legacy and values of Franklin and Eleanor Roosevelt.

Photo: OZinOH via Flickr

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  1. sigrid28 July 2, 2014

    We must show how women’s rights will be affected by the mid-term election in 2014: a Democratic Senate can approve the President Obama’s appointments to the federal bench and to the Supreme Court if the need arises. Our judicial system is designed to allow challenges to these rulings by SCOTUS and to the other new laws restricting women’s rights. These challenges might have to wend their way slowly through the courts, but they will have the effect of slowing down the momentum of these changes and throwing wrench after wrench into the gears of a machine designed to discriminate unfairly against women and their families. Then a victory for women in the 2016 election can add eight years to the process of dismantling these obstacles. The Americans who support them are in a minority already, a minority that will only become more and more marginalized.

    1. Bill Thompson July 2, 2014

      I must say I love your optimism, the right is already on the attack accusing Democrats of engaging in scare tactics. In the last two days the right has come out swinging saying 16 of 20 birth control measures are permitted under the Supreme Court ruling. The only restrictions being IUDs and morning after pill which they equate to abortion.
      The Democratic leadership and organizations need to get their butts in gear and start registering voters at a rate that his been unprecedented if we are to survive the 2014 midterm elections. The Senate is at great risk and with it comes any chance of furthering Pres. Obama’s agenda. Get out the vote measures should be a priority.
      If the Democrats manage to hold the Senate it may be a wake up call to the rest of the Republicans and maybe on and off chance it will provide a little more cooperation.
      Keep the posts coming I find them encouraging.

      1. sigrid28 July 2, 2014

        The only game in town for Democrats is registering voters and getting Democrats to the polls. We have trouble with this locally, because the Democratic committee is by invitation only (no people who have recently come to this community need apply), and the local OFA is run by incompetent college students–the locals like it that way. League of Women voters is run by Republicans. I swear the Democratic committee people are just as racist as the Republicans, who have some Confederate flag wavers in their midst. I am looking for that thing that most resembles the volunteer phone bank on a website like the BarackObama.com website in 2012. If Democrats don’t resurrect that, they are indeed crazy. If private citizens can set up a card table and register voters, I will try that. Just registering voters and getting them to vote.

  2. m8lsem July 3, 2014

    The Hobby Lobby case may be narrower than commonly depicted … I did run into one site where a fact was recited that would be important to note: it suggested Hobby Lobby was self-insured; i.e., all the medical bills are directly paid by Hobby Lobby, not by an insurance company. ‘All those that are both Closely-held and self-insured’, if that’s the case, is a much smaller group than is ‘all the closely held’.
    Even so, the problem faced by the people in those states that did not expand Medicaid is appalling.


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