by Fall Ferguson, JD, MA
The U.S. Supreme Court’s Burwell v. Hobby Lobby decision, ostensibly about abortion and religious liberty, may not seem like a Health At Every Size® issue at first glance. However, I would argue that we encounter a HAES issue any time someone’s health rights are limited or circumscribed based on morality or anyone’s belief system. Access to health care is a HAES issue, and when any person is excluded, it harms all of us.
When the Affordable Care Act (ACA) banned practices such as rescission and exclusion based on pre-existing conditions, some of us wondered how long it would take before U.S. employers and insurance companies started finding new ways to prevent access. Six months in, with this recent decision, our wait is clearly over. The process of exclusion, which is out of sync with HAES inclusivity, is well underway. This situation may boggle the minds of readers in other countries where health is recognized as a human right, but not so here in the U.S.
The Hobby Lobby Decision
Decided on June 30, 2014, the case concerned several closely held, for-profit corporations whose owners have a “sincerely held religious belief” against the use of certain forms of birth control they deem as “abortifacients” (e.g., IUDs and the “morning after” pill). The decision is grounded in the Religious Freedom Restoration Act of 1993 (RFRA), which exempts “persons” from compliance with a law on the basis of religious beliefs. The Court held that these companies don’t have to comply with federal regulations created under the Affordable Care Act requiring employers with health insurance plans to offer coverage of birth control. (Note: closely held corporations are not necessarily small companies; for example, Hobby Lobby has 576 retail stores.)
Some see this as an affirmation of religious freedom. Some are celebrating this as a political win against President Obama, against “Obamacare,” or against the Democrats more generally. And, I imagine that some political strategists may also relish this explicit reinforcement of the idea that corporations are “persons” enjoying the rights and privileges of that status under U.S. law.
There have been many reactions against the decision, as well, though I won’t take the time to go through them all. (For an interesting conservative reaction to the tenuous nature of the “sincerely held belief,” see this blog post by Brookings Institute Fellow Jonathan Rauch.)
In relating this to the HAES paradigm, my chief concern is what I see as a threat to our bodily autonomy. Some have framed this as a “women’s health” issue; that ignores the idea that people of many gender identities may need access to birth control, and the even broader idea that reproductive health and autonomy are health values for all genders.
For many of us, the HAES approach includes the idea that health exists on a continuum and should be defined by the individual, as noted in ASDAH’s recently revised HAES Principles. Many of us also agree that it should be rooted in a social justice framework informed by such considerations as racial justice and health equity. My personal view is that included within these principles of self-determination and social justice is the idea that I should get to make the decisions about what happens to my body. Historically in the U.S., bodily autonomy has been denied to transgressive and non-privileged groups, especially with regard to people of color, the poor, and people with disabilities. More recently, fat bodies and non-gender-conforming bodies have received excessive scrutiny as well. Many people’s employers already attempt to police their bodies in numerous ways. I worry that these legal developments are creating new ways that employers’ beliefs can affect access to health care.
Narrow Holding or “Decision of Startling Breadth”?
Justice Alito, writing for the majority, asserted that the decision was narrow, applying only to a small number of situations. Some say the fact Justice Alito expressly stated that this opinion should not be interpreted as a way to “cloak … discrimination in hiring” is actually a good sign for LGBTQ rights (e.g. this article in the Washington Post and this one appearing on Slate.com).
Justice Ginsberg, on the other hand, called it “a decision of startling breadth” in her dissent (joined by three other justices) and opined that with this decision, the Court “has ventured into a minefield” (p. 35). She speculates that other employers will now make RFRA claims to avoid paying for “blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations.” MSNBC ran a story on July 1 entitled simply, “The Hobby Lobby decision isn’t narrow.”
For reasons outlined below, I agree with Justice Ginsberg here. The potential for expansion of this decision is troubling, and we need to speak up. Those with transgressive characteristics – e.g., poverty, gender, sexual orientation, race, ethnicity, size, disability, or health status that departs from “normal”– are already disadvantaged when it comes to our health rights. Those of us promoting a Health At Every Size® model are increasingly aware of the complex embedded biases that prevent access to quality health care. This recent decision seems to open the door to deepening the egregious health inequities and discrimination that are already affecting so many.
Reasons for Concern
Let’s look at what has already happened since the decision:
- Erosion of LGBTQ Rights? Liberal (you read that correctly) religious leaders have already written a letter to President Obama asking him to “recalibrate” his position on LGBTQ rights in light of the Hobby Lobby decision. In short, they want him to include a religious exemption in a planned Executive Order banning discrimination on the basis of sexual orientation or gender identity.
- Expansion One Day Later. On July 1 (one day after the Hobby Lobby decision), the Court clarified that the decision applied to all 20 forms of birth control protected by the ACA.
- Hypocrisy of the Majority Three Days Later. On July 3 (three days after the Hobby Lobby decision), the Supreme Court granted injunctive relief to religious non-profits who object to filling out a form. When the ACA took effect, some religious employers (churches, schools, etc.) objected to providing insurance coverage for birth control services; the government accommodated them with a system where the employers sign a form stating their objection, and the insurer provides the coverage directly, with the government picking up the tab (“the religious accommodation”). Now, these religious organizations claim that the simple act of signing the form violates their religious beliefs because someone will be providing birth control to someone.
Here’s the really disturbing thing about the July 3 decision: The Hobby Lobby majority pointed to the religious accommodation as a key reason why it was OK to allow Hobby Lobby and similar companies to refuse the coverage: there was another way for employees to get the coverage. A mere three days later, the Court has allowed employers to ensure that their employees can’t get the coverage by not signing the forms. In a scathing and history-making break from the respectful tone usually employed by the authors of Supreme Court dissenting opinions, Justice Sotomayor wrote: “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”
- Arguments Made on the Backs of the Oppressed. In the wake of Hobby Lobby, some folks have argued against the decision because there are other “legitimate” health reasons for prescribing birth control. Really? Reproductive freedom is no longer legitimate? We can’t fall into the trap of assigning values to different health concerns, creating a hierarchy where some are more legitimate or important than others. The HAES movement needs to advocate for health for all, and health needs to be defined broadly and individually. Golda Poretsky brilliantly points out that what she calls “appeasement that masquerades as an acknowledgment of rights” is similar to certain size acceptance arguments that get made. We can’t justify equal rights for all sizes by pointing out that some fat people are “good” (e.g., have “perfect” eating habits, exercise every day, etc.).
I fear we may be experiencing a new and dangerous erosion of health rights in the U.S. People of all sizes have a right to access respectful care. So do poor people, gay people, trans people, people of color, people with any and all health conditions, and everybody else, too. The only way to ensure these rights is to guarantee them for all. And that’s why Hobby Lobby is a HAES issue.