Should Employers Be Allowed to Use Their Faith to Discriminate Against Women?

CHICAGO, IL - JUNE 30:  Religious freedom supporters hold a rally to praise the Supreme Court's decision in the Hobby Lobby,
CHICAGO, IL - JUNE 30: Religious freedom supporters hold a rally to praise the Supreme Court's decision in the Hobby Lobby, contraception coverage requirement case on June 30, 2014 in Chicago, Illinois. Oklahoma-based Hobby Lobby, which operates a chain of arts-and-craft stores, challenged the provision and the high court ruled 5-4 that requiring family-owned corporations to pay for insurance coverage for contraception under the Affordable Care Act violated a federal law protecting religious freedom. (Photo by Scott Olson/Getty Images)

When Congress passed the Women's Health Amendment as part of the Affordable Care Act in 2009, it was seeking to combat discrimination against women in the U.S. healthcare system. The amendment was a long overdue step to make sure that women are not left without insurance for such basic services as mammograms or contraception.

It seemed a step forward so basic that it should garner no controversy, but only commentary about how long we had waited. Instead, the very idea of guaranteeing insurance coverage for contraception sparked a storm of protest.

More than 90 lawsuits were filed challenging the requirement. In 2014, the Supreme Court addressed a claim arising in many of these cases -- whether the basic requirement that insurance cover contraception violated the religious liberty of for-profit corporations that objected on religious grounds. In a case known as Hobby Lobby, named for the chain of arts and crafts stores that brought the case, a closely divided Supreme Court concluded that the rule did, in fact, violate the businesses' religious liberty.

Much about that decision is remarkable, including that it didn't put an end to the protest and the litigation. To the contrary, once again, the contraception benefit is before the Supreme Court on Wednesday. What's at stake this time is every bit as critical as what was at stake in Hobby Lobby.

In the Hobby Lobby decision, the court reached its decision in significant part because it reasoned the government had another way to ensure women had insurance coverage for contraception. The court pointed to a process the government had in place for religiously affiliated nonprofit organizations that object to providing the benefit as required by law. Under this process, the employer lodges its objection with its insurance carrier or with the government, which then notifies the insurer. The insurer then provides the employees the coverage, both administering and paying for it.

The process, often referred to as the "accommodation," now applies to Hobby Lobby and other closely held for-profit businesses, as well as to nonprofit religiously affiliated entities, like universities and hospitals, that object.

What's in question in this case now before the court is this very process. The employers before the court argue that filling out the form violates their religious liberty. They argue that it requires them to facilitate their employees' insurance coverage for contraception and thus makes them complicit in a sin. It's an argument the court shouldn't accept and one that exposes the employers' real objection -- their employees getting coverage for contraception.

But that isn't the only argument raised by the employers that's rooted in discrimination.

The plaintiffs in these cases also say that the government has other alternatives. It can, plaintiffs say, direct women to the health care exchanges set up by the Affordable Care Act so they can buy an insurance plan for contraception, or it can direct women to government-subsidized health clinics for contraception. The exchanges and the health clinics are to be lauded. (I know. I've been to a public health clinic for care.) But that doesn't make the argument before the court reasonable.

There's a basic question of access. And there is a question of treating women who want contraception different from all other employees seeking health care.

Think about how this argument would sound in another context. Imagine the employer who denies spousal benefits if the spouse is the same sex because the employer objects to marriage for same-sex couples for reasons of faith. Or the employer who objects to interracial marriage on grounds of faith and denies spousal benefits in cases of interracial marriage to avoid complicity. What if the employers in those scenarios justified their discriminatory conduct by saying the spouses denied benefits could simply go on the exchange?

In those situations, we would see that for what it is -- discrimination -- and understand that it is no answer that insurance coverage was available elsewhere. After all, ending discrimination means we can come through the same door at last, and be served similarly.

When we examine who stands to lose here, it's the teachers, janitors, chefs, and nurses who work in religiously affiliated organizations, and the cashiers, salespeople, and warehouse employees who work in for-profit companies that object to coverage. These women want only to access the benefit they're legally entitled to -- one meant to end inequities -- without the interference of their employers' religious beliefs.

What the employers before the court are suggesting now is a proverbial back door for women employees and dependents who want to avail themselves of the contraception benefit afforded by law.

That's not what equality looks like.