Fifty years ago, the Supreme Court upheld the right of individuals to
access birth control despite the opposition of some religions. Since then,
mainstream attitudes have changed. But fundamentalist religious views about
reproductive health and sexuality still influence our politics and law.
Hobby Lobby’s recent decision is a prime example. By a 5-4 vote, the
Court held that religiously minded business owners essentially may “line-item
veto” birth control coverage out of their employees’ health plans. The ruling
is the fruit of an intensive strategy by today’s religious conservative
movement.
The decision could mean that religious interests now trump other
interests in many circumstances, with religious believers entitled to impose
their views at others’ expense in ways systematically rejected in the past.
This is the result Justice Ginsburg calls out in her clarion dissent. She
accurately observes that the majority’s approach invites case-by-case testing
of religious objections to federal laws and may give unprecedented approval to
objections by finding fault with those laws, just as was done here.
In looking at health insurance, what questions may arise post-Hobby
Lobby for LGBT people and people living with HIV? Given the majority’s
rejection of discriminations, it seems unlikely that the Court would condone
religious refusals of family coverage for workers in a same-sex relationship
when coworkers receive coverage for a different-sex partner. And when a health
plan includes coverage for a particular medical treatment, the Court probably
will nix religiously based refusals of that treatment to LGBT people.
So, for
example, if there is coverage for hormone replacement therapy for menopausal
women and men after testicular cancer surgery, it should likewise be available
for transgender people. Likewise, if donor insemination or in vitro
fertilization is covered for different sex couples, it similarly should be
covered for same-sex couples. Finally, prescription drug coverage to manage a
persistent viral infection or boost the immune system should not be excludable
based on employers’ religious judgments about how a person may have contracted
HIV.
In each of these examples, treating LGBT differently would be
discriminatory. The work ahead includes insisting that nondiscrimination
standards must themselves be nondiscriminatory. That is, “equal” must mean the
same thing for everyone.
