Ken’s Take on the World

The Supreme Court Ruling on Hobby Lobby, et al., and Implications for PrEP

This past Monday’s decision by the US Supreme Court regarding Hobby Lobby, et al., has been widely misinterpreted as both a sweeping victory for Christian businesses and a slap at the Obama Administration and the Affordable Care Act, as well as, a total annihilation of reproductive rights and reproductive healthcare in the United States.  Both of these extremes are flawed and completely miss the mark.


While I do believe the opinion, penned by Associate Justice Samuel Alito, is flawed, it was not a broad sweeping opinion and it attempted to narrowly relate to the facts presented in the case.  The ruling’s major flaws include its attempt to insert the Supreme Court into the role of determining, what is a legitimate religious liberty and, recognizing a corporate entity as having the legitimacy of personhood.  Other flaws associated with the ruling are more covert and may not be recognized for a period of time.


While many have been quick to claim the Justices voting in favor of the Hobby Lobby decision acted out of a political, or ideological, motivation, they miss the fact that the government failed to provide enough proof for the Court to rule otherwise.  The attorneys representing Hobby Lobby, Conestoga, etc., brought a case that expressed their clients’ opposition to four specific types of contraceptives that, to one extent or another, prevent the implantation of a fertilized egg into the wall of the uterus.  These drugs, referred to by Hobby Lobby, et al., attorneys as abortifacients, prevent the fertilized egg from implanting into the uterine wall.   They did not present evidence opposing forms of contraception that prevented the fertilization of the egg claiming only that their clients believed, as a matter of religious teaching that life begins at fertilization.  The government failed to counter these claims with satisfactory evidence otherwise including any rationale that may exist, demonstrating improved safety, cost-efficiency, or beneficence for women.   


The Court did not address, nor did the Hobby Lobby group claim, more invasive forms of contraception, including vasectomy or tubal ligation, violated their sincerely held religious beliefs.  Nor did the Court address forms of contraception that prevent the fertilization of an egg.  This is what narrows this particular ruling.  One flaw in narrowing the ruling is that the Court failed to recognize medical and scientific consensus that life can only be recognized as beginning when the egg implants into the wall of the uterus and begins to divide.  The Court relied on the Religious Freedom and Restoration Act (RFRA) to determine that the owner of a business does not sever their religious faith simply by entering into a contractual structure as in incorporating a business. 


It should be noted that an egg that does not implant in the uterine wall, but rather begins to divide anywhere else is referred to as ectopic and may often require the surgical excision of a dividing embryo.  This condition, an ectopic pregnancy, and the consequent surgical intervention associated with terminating this pregnancy would appear to also violate the religious beliefs of the Hobby Lobby participants in this case.  This demonstrates the convoluted rational the Court used in reaching its 5 to 4 decision.


While the ruling did note that future court cases seeking religious exemptions for vaccinations and blood transfusions may result in a different opinion than what was rendered here, it is important for those of us concerned about reproductive health, that there are implications for pre-exposure prophylaxis (PrEP) to be discussed.


Because the Court did not address other forms of contraception, including vasectomy and tubal ligation, they also did not, more broadly address other forms of reproductive healthcare including vaccination against the Human Papiloma Virus (HPV), post-exposure prophylaxis (PEP), or PrEP.  It is reasonable to anticipate that another corporate entity may elect to seek exemptions from requirements for other forms of reproductive healthcare.  For example, an employer may suggest that sex outside of traditional marriage between a man and a woman violates their sincerely held religious beliefs, therefore requiring them to provide insurance coverage for PrEP or PEP is a Constitutional violation of their religious liberties.  Notwithstanding the fact that there are male/female married couples that currently use PrEP as a part of their reproductive health, the Court’s failure to recognize legitimate scientific and medical consensus in the Hobby Lobby case should give us a reason to be concerned about how the current Court might rule when faced with such a case.


The Court erred in attempting to determine what constitutes a legitimate, and sincerely held, religious belief deserving of Constitutional protection which is troubling.  The US Constitution ensures that each of us, as individuals has a right to believe as we so choose.  The Supreme Court has now made itself the arbiter of what religious beliefs can be imposed by employers on employees which should be a concern for each of us.


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