Previously on Cornerstone, scholars discussed the implications of the recent Hobby Lobby decision for religious freedom and explored the wider function of religion in American public life. This week, we asked respondents to consider why contraceptives specifically are at issue in the case and to examine the lack of consensus on their use among religious and public interest groups.

By: Kara Loewentheil

One of the few mercies of the Supreme Court’s opinion in Burwell v. Hobby Lobby Inc. last month was its acceptance of the government’s argument that access to contraception is indeed a compelling governmental interest (see pages 39-40 of the majority opinion). Justice Kennedy’s concurrence (see pages 2-3), in particular, stressed that this vote for the majority’s holding hinged on his belief that the government could achieve its compelling interest in a different manner without burdening the rights of the women whose contraceptive access would be affected. But we should not be too sanguine about this aspect of the holding, because it too is under attack. 

The evidence is clear even in the postings gathered together for this online forum aboutHobby Lobby and contraception. It is hard to believe that in 2014 we are still arguing about whether access to contraception is crucial for women’s health and equality, or whether contraceptive access is a real problem. I could spend this entire post going over the overwhelming number of studies by doctors, sociologists, psychologists, demographers, and public health experts demonstrating that contraception works and explaining the importance of access to safe and affordable contraceptives and the centrality of family planning to women’s educational, economic, social, and political equality. Contraception literally saves lives—hundreds of thousands of them a year, all over the world. Don’t take my word for it—take the word of credible mainstream health authorities, like the Centers for Disease Control and Prevention and the World Health Organization, just to name a few. Access to contraception improves women’s educational and economic prospects, allowing them to attend school, participate in the workforce, and support themselves and their families. (See also “The Power of the Pill”.) It also allows them to have sexual lives but not have children they do not want to have, which should be a good enough reason to promote access to contraception in and of itself. 

Furthermore, access is by no means easy for many women in this country—it is particularly challenging for women who want access to long-acting reversible contraceptives, like the IUD, which women vastly prefer when they can afford them, but which can cost $800-$1000 up front (about 80% of a full month’s wages on the federal minimum wage, in other words). Contrary to skeptics’ claims, many women are not eligible for subsidized contraception under any other existing program. (For a more thorough explanation of the barriers to access, see Kara Loewentheil, When Free Exercise is a Burden: Protecting “Third Parties” in Religious Accommodation Law, pages 433 and 439-444.)

Contraception is crucial for women’s equality, in all senses of the world. It is possible for women to have the kind of “full life” that a particular traditional conservative religious morality would allow without having access to contraception, because that life entails serving as a wife and mother, or being celibate. But it is impossible for women to have full and equal lives in the modern sense of the word without it. 

So why we are still arguing about contraception? It is not because contraception doesn’t work. Obviously contraception is more effective the more correctly it is used, but to say that contraception as a general matter is ineffective or unimportant—much less dangerous—is simply ludicrous. We’re having this conversation because control of reproduction and fertility and sex implicate fundamental questions of individual autonomy: the autonomy to decide when to have sex, with whom, and when and how and whether to become a parent. And we’re having this particular conversation about contraception and how and whether it works because the anti-abortion movement wants us to have it. Hobby Lobby and its companion cases are part of a conservative social movement dedicated to the idea that contraception and abortion are the same thing: both that they have the same mechanism of action, and that their moral status is the same. (See also Pro-Life Wisconsin.) The former is simply untrue (see Planned Parenthood, Dr. Jen Gunter’s New Repulic article, and American Society for Emergency Contraception); the latter is a matter of personal opinion. 

One of the particularly peculiar elements of this contraception-is-abortion narrative is the way it conflicts with the argument that contraception doesn’t actually work. Were this actually the case, contraception would be a less pressing issue. Anti-abortion advocates occasionally reconcile these conflicting premises by arguing that use of contraception increases the incidence of abortion because it encourages people to have sex, and that since contraception doesn’t work, there end up being more pregnancies that are then terminated. (See also Priests for Life.) So contraception and abortion are linked in this discourse in two ways: (1) they have the same physiological mechanism (which is scientifically false), and/or (2) the former causes the latter. 

This attempt to erase the distinction between contraception and abortion, or to suggest that they necessarily increase each other, results in tainting the former with the stigma and social rancor that surrounds conversations about the latter in this country. It also normalizes objections to not just the use or provision of contraception but even the association with contraception. The result will be to make the use or provision of contraception a Scarlet C, to match
the Scarlet A that provision or association with abortion already entails. And then what would we have? A world without access to contraception (and abortion) is a world in which women cannot control their own destinies. The Supreme Court recognized this once*; let’s hope it still does. 

*In Planned Parenthood v. Casey, 505 U.S. 833, 856 (1992) the Court explained that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

Kara Loewentheil is the director of the Public Rights / Private Conscience Project at the Center for Gender and Sexuality Law at Columbia Law School and a research fellow at Columbia Law School. 

This piece was originally authored on August 6, 2014 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.