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THE CONSCIENCE EXEMPTIONS

Why US businesses are opining on a Supreme Court case about contraception

Lady Justice at SCOTUS.
Reuters/Sarah Sibliger
What would Lady Justice say?
Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Washington DC

On May 6, the US Supreme Court will hear arguments in two cases about the Trump administration’s expansion of the “conscience” exemptions to contraception coverage under the Affordable Care Act (ACA). The changes allow institutions providing health insurance to avoid paying for birth control, for religious or moral reasons, without notice.

A nationwide injunction has blocked implementation of the changes so far. Now the justices are faced with three very technical legal questions. Basically, they must decide whether federal agencies had the authority to expand existing exceptions and followed proper procedures, and determine the injunction’s validity.

The federal government argues that it made no procedural errors and is authorized to protect those who conscientiously object to providing medical services they deem immoral. The rule challengers contend that the expanded exceptions would swallow the rule and that prior exemptions sufficed because they allowed churches, places of worship, and religious nonprofits to opt out, as well as a limited number of businesses claiming moral objections.

But for 23 organizations and corporations representing hundreds of thousands of employees that filed a “friend of the court” brief (see below), the cases are a multi-trillion-dollar economic issue. The US Women’s Chamber of Commerce, the National Association of Female Executives, and financial-services, media, technology, and retail businesses write:

The regulations in this case would allow nearly any private employer, university, or health insurer to invoke religion or morality as a basis for stopping contraceptive coverage under the ACA … 

Today, women comprise more than half of US jobholders, with 76 million women working in full- or part- time roles, and their labor accounted for $7.6 trillion—or 40% of annual US gross domestic product in 2017. In 2019, women-owned businesses generated $1.9 trillion in sales and employed 9.4 million people.

American women contribute to economic innovation, productivity, and growth. These outcomes would not be possible without women’s ability to control their own reproductive health, including access to contraception.

Private rights and public health

Coworking company The Riveter signed the amicus brief. Founded in 2016 by CEO Amy Nelson—a lawyer—the business has joined only one such filing previously. The decision “requires close analysis,” Nelson tells Quartz. “When we sign a brief like this, it signifies that the issue at hand is critical to the advancement and success of working women, and we believe that in order to do our work and champion our mission, The Riveter must take a stand.”

Nelson believes that family planning—choosing when to have children and with whom—is a pillar of equity in the workplace. “It is intrinsically tied to women’s ability to be successful in the way they choose in their careers and lives.”

The coronavirus crisis has only emphasized the importance of family planning, Nelson says. With record unemployment and a long, grave recession ahead, women need to maintain control over reproductive health and their professional lives.

Allowing the proposed rule changes “would be an assault on women’s personal freedom and right to privacy and it could prove catastrophic for families who depend on working mothers as primary breadwinners,” Nelson argues. It may also impact industries dependent on a primarily female labor force at a time when one in three jobs held by women has been deemed essential.

Pandemic lockdowns have led to slew of lawsuits about family planning. Some states, like Texas, barred even nonsurgical abortion, undermining efforts to flatten the infection curve and forcing women to travel beyond state borders for “two pills.” Officially, the rationale was to safeguard protective equipment for medical professionals. But Texas authorities seemed disingenuous because the state has unconstitutionally limited abortion before, claiming health concerns that appear to mask ideological opposition.

The tension between religious liberty and reproductive freedom—at the heart of the pending high court ACA contraception cases—is continually cropping up. Nelson is lawyerly about her company’s position. “Roe v Wade was decided on the basis of the right to privacy. We stand by the landmark Supreme Court [abortion] case.”

Vikrum Aiyer, vice president of public policy at Postmates, which signed the brief, tells Quartz “it’s no secret” there’s been an increased effort in recent years to erode reproductive rights. Standing on the sidelines while the contraception cases are decided “wasn’t an option.” Nearly half of the company’s on-demand delivery workers are women, as are 60% of its customers, while tens of thousands of women-owned businesses operate in its marketplace. Aiyer explains:

It runs counter to our values to sit idly by as these efforts…are made to undermine women’s health and economic freedom. Postmates wants to make very clear to the women who power our platform, who live and work in the communities we serve, that we are committed to defending their right to access the health care and services they need.

Signaling positions

The media giant Bloomberg also signed the brief, concluding that expanding the existing ACA contraception exceptions is legally, economically, and socially problematic. “Every lower court has ruled that the administration’s proposed rules are illegal,” Chris Michel, head of diversity and inclusion for the Americas, tells Quartz. “Bloomberg strongly supports getting more women into the workplace, and unfettered access to contraception will allow them to have greater control over their education, careers, and lives. In turn, this facilitates and strongly increases their participation in the workforce, thereby helping businesses grow and the economy to thrive.”

Similarly, David Leeb, general counsel for the technology company Box, says the issues raised in these upcoming cases are important and that the potential damage could be serious. “When something clearly goes against the values Box tries to cultivate internally and has a negative impact on the lives of our employees and their families, it becomes a relatively easy decision to sign on to an amicus brief, like this one,” he says. “If we can take a public stance in order to make a difference, we will.”

Whether the contributions will make a difference remains to be seen, however. The justices will have a chance to hear from attorneys in the matters next week at historic telephonic oral arguments necessitated by the pandemic, and they are expected to issue their decision by the term’s end in late June.

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