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Fun news! (Not fun news.) The battle over birth control continues and Supreme Court is going to hear Hobby Lobby Redux this term.

On Friday, the Supreme Court granted cert in Pennsylvania v. Trump and Little Sisters of the Poor v. Pennsylvania, a pair of cases about whether employers can refuse to give their employees insurance with birth control coverage.

Yes, this again. Because the third time to the Supreme Court's the charm!


Here's the deal

Birth control coverage is one of the most popular parts of the Affordable Care Act. Because of the ACA's Women's Health Amendment, an estimated 62 million people have contraceptive coverage at no cost. Since the contraception provision took effect in 2012, women and people who can get pregnant have saved some $1.4 billion per year on birth control.

The ACA requires insurance polices to cover contraception at zero cost to employees. Under Obama, the Department of Health and Human Services (HHS) issued rules that allowed religious groups to opt out of providing contraceptive coverage to employees. After Trump took office, HHS issued new, broad rules, allowing many different types of employers to deny birth control coverage.

The new rule would allow all kinds of employers -- including publicly traded corporations -- to refuse to provide insurance that covers birth control to their employees.

What I would like to know is how one even determines the religious beliefs of a publicly traded corporation. Is it the beliefs of the person who owns the most shares? The CEO? President of the board? Maybe the board members can draw straws to see whose religious beliefs get to control the actions of their employees? But I digress.

This is the third time the ACA's contraception mandate has made it up to the Supreme Court. in 2014, it decided the dreaded Burwell v. Hobby Lobby case, which allowed the owners of closely held corporations, like the sexists at crafting giant Hobby Lobby, to refuse to provide birth control coverage for their employees.

In 2015, Zubik v. Burwell made it up to SCOTUS over a truly absurd issue, making it clear that these anti-woman fascists aren't going to stop until women are again expected to live their lives barefoot and pregnant. Qualifying employers and schools were able to get out of providing contraceptive coverage by filling out a one-page form. Filling out that single page, the nutjobs argued, was also a burden on their religious expression. (I have no explanation.) After multiple rounds of briefing, the Supreme Court punted and asked the parties to try to settle the issue, themselves.

Now, here we are with round 3.

Trump's HHS basically gave the misogynists what they wanted and allowed employers and other institutions to opt out of birth control coverage without the burden of having to fill out a document that was an entire page long. The Trump rule allows all kinds of employers and institutions to refuse to cover birth control on both religious and "moral" grounds.

The new rule was challenged by Pennsylvania and New Jersey. The states won both at trial and at the Third Circuit. As noted by Pennsylvania Attorney General Josh Shapiro:

Two federal courts have blocked the Trump Administration's rules because they would allow virtually any employer to deny women access to contraception for any reason—including the belief that women should not be in the workforce.

Little Sisters of the Poor, the same Catholic group that objected so strenuously to filling out a form, is also involved in litigation around the rule. The issue in that case is whether the group has standing to appeal when they are already exempted from the birth control mandate.

Brigitte Amiri, Deputy Director of the ACLU's Reproductive Freedom Project, summed it up well, saying:

Allowing employers and universities to use their religious beliefs to block employees' and students' birth control coverage isn't religious liberty — it's discrimination. The Trump administration's attempt to take away people's insurance coverage for contraception is one of the administration's many attacks on access to abortion and contraception, and we hope the Supreme Court will uphold the lower court's ruling blocking this awful law.

So that's infuriating

The Supreme Court will likely hear oral arguments in April and decide the case this summer.

The fact that the Court granted cert at all is likely bad news for women and people who rely on birth control. While this is not always the case, generally the justices decide to hear cases because they have issues with the lower court's decision, not to give the lower court judges a high-five.

An untold number of people around the country could lose their birth control coverage if this discriminatory rule is allowed to go into effect.

The fact that these three trips to the Supreme Court and years of litigation have been specifically about birth control says a lot about the priorities and values of the people fighting against the coverage -- and not in the way they think.

Preventing pregnancy and allowing women to decide when they want to have children is one important use of birth control, but it's far from the only use. Birth control pills are also used to treat a number of medical conditions, including everything from polycystic ovary syndrome, endometriosis, and primary ovarian insufficiency due to chemotherapy, to menstrual cramps, irregular periods, and PMS.

On the other hand, I am aware of no lawsuits from these same religious groups about insurance coverage of penis drugs like Viagra, which, unlike birth control, is FDA-approved for only one thing: erectile dysfunction. (Sildenafil, the active ingredient in Viagra, is also used to treat pulmonary arterial hypertension, but under a different name and at lower doses.)

If this were really about sex, we'd be seeing all kinds of lawsuits about penis drugs. But for the right, this has never been about sex, just like abortion has never really been about fetuses. It's about controlling women.

When women control their reproductive destinies, they control their lives. They're able to decide when and with whom to start a family. They're free to work and go to school and choose what to make of their lives in their own times.

And that's exactly what the right is trying to stop.

[ Third Circuit / E.D. Pa. / ACLU ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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