Hobby Lobby, Contraception, & the Supreme Court Ruling

The Roberts CourtAs expected, the last case ruled on before the Supreme Court of the United States adjourned until October was the Hobby Lobby/Conestoga case. For those unaware, this case is based on the Affordable Care Act’s contraception mandate, classifying contraceptives as preventive healthcare required under all insurance plans without a co-pay. Hobby Lobby and Conestoga Wood both objected to this, saying that covering some forms of birth control, like the IUD/IUS or Plan B, violated their religious beliefs by requiring them to fund abortive medications.1

Unfortunately, SCOTUS ruled for Hobby Lobby/Conestoga, agreeing that the contraception mandate of the Affordable Care Act violates the Religious Freedom Restoration Act.

Now, before we get into the particulars,2 let’s go over the generals:

  • NO, SCOTUS did not overturn the contraception mandate.
  • NO, SCOTUS did not rule companies do not have to provide contraception to employees.

This is a limited ruling that does not affect publicly-held corporations, or privately or closely-held corporations that do not also have sincere religious beliefs.

So what did happen? SCOTUS ruled that closely-held corporations owned by people with sincere religious beliefs do not have to provide contraception coverage that violates those sincerely-held religious beliefs.

It’s important to note that this is a very, very narrow ruling. In the majority rule, Justice Alito noted that this particular ruling would not give companies room to discriminate; for example, a closely-held corporation owned by folks whose religion finds gay people an abomination would not be allowed to freely discriminate against gay folks. This ruling does not overturn federal protections for suspect or quasi-suspect classes.

…your eyes just glazed over, didn’t they? At the end of this post, you’ll find a treatise on legal vocabulary that might help the above make sense. For now, let me put it into English for you: highly religious families that own large businesses that employ lots of people but don’t share that stock love around are allowed to deny female employees certain types of contraception based on scientifically incorrect notions of what an abortion is, but that’s all they’re allowed to do.

In line with the Citizen’s United ruling that says corporations (are people too) have free speech, this ruling says that a small, small group of companies in the United States are protected under the RFRA, because they have a religion.

In the run-up to this decision, I’ve quipped (repeatedly) that I’ve never seen a corporation in a church before. SCOTUS would reply: when that company is held by five or fewer related family members with shared sincere religious beliefs, if you’ve gone to church with that family, you’ve seen that corporation in church.

In other words, there is no firewall between the religious beliefs of a family and the company that the family runs. (This also would apply to a small group of people who share a sincere religious belief but are not related.)

The reason for this is that the ACA mandate fails the Sherbert Test. Justice Kennedy said that he believed that the option for religiously-affiliated organizations, such as Catholic hospitals, to opt-out of contraception coverage meant that the government could not prove that requiring Hobby Lobby and Conestoga Wood (or other closely-held corporations with sincere religious beliefs) to include contraception coverage in the health policies they contribute to was the least restrictive or burdensome option. In the case of the religiously-affiliated non-profit organizations, women are able to receive contraceptive coverage through separate health policies provided by the federal government at no charge; Justice Kennedy clearly feels that this will be extended to women who work at closely-held corporations with sincere religious beliefs against some contraceptives.

Of course, as SCOTUSblog noted, there are a couple of issues here. The bigger one is whether or not the Department of Health and Human Services has the authority to extend the non-profit contraception exemption to closely-held corporations; I expect we’ll see the Obama Administration clarify this quickly (and most people seem to think that HHS has the authority to do this, including SCOTUS).

The smaller issue is an interesting one. There are some non-profit groups that have argued that even signing a certificate that says they object to providing contraception coverage for their female employees is a violation of the RFRA. Today’s Hobby Lobby/Conestoga ruling seems to imply that SCOTUS does not find the process of certifying beliefs an undue burden under RFRA, which could effectively shut down some 20-odd cases around the country.3

So in sum, closely-held corporations can express religion and are protected under RFRA as long as it’s a sincerely-held religious belief, but the expression of their religious beliefs does not go so far as to allow discrimination; women employed by these companies should still be able to receive free contraceptive coverage from HHS, like women who work for religious non-profits do; and signing a piece of paper to indicate that your company’s sincerely held religious beliefs is probably not going to be viewed as an undue burden by SCOTUS.

It’s an interesting ruling, and one that I suspect isn’t going to make too many people happy, even while people will incorrectly make absurd statements on what the ruling means.

My personal take is a bit more esoteric: I actually think this Supreme Court is laying the groundwork for a robust federalized healthcare for everyone; clearly, they have established that it is appropriate for the government to offer and require insurance. This shifts another bit of the burden away from companies and towards the federal government, and I suspect that these tiny shifts are what it’s going to take to end up in a system of basic healthcare services provided by the government, with the option for additional insurance offered by companies as hiring incentives or purchased on the market for those interested. The question then becomes: is this intentional by Justice Alito and the other conservatives judges, or is this just happy coincidence as they strive to protect the rights of corporations to be people?

 


Let’s talk about vocabulary, everyone’s favourite subject! In specific, let’s get some definitions for SCOTUS vocabulary and legal language out and down on paper, so that we’re all on the same page.4

Closely-held corporation
A closely-held corporation is a private company owned, directly or indirectly, by a small group of people; the majority of the shares are held by five or fewer people.5 These are not publicly traded companies; if a shareholder wants to sell, it must be to an existing shareholder.

Religious Freedom Restoration Act
The RFRA is a 1993 law, signed by Bill Clinton, that prevents laws that substantially burden a person’s free exercise of religion. RFRA applies to the federal government, not state governments. As ACA is also a federal mandate, it is subject to scrutiny under RFRA. The law reinstates the Sherbert Test to see if an individual’s right to free expression of religion has been violated by the government, and mandates that any challenge involving the Free Exercise Clause of the First Amendment be subject to strict scrutiny.

Sherbert Test
This is the test used to determine whether or not the government has violated free expression of religion. For an individual, (and remember, corporations are people, too!), the court must determine:

  • whether the person has a claim involving a sincere religious belief, and
  • whether the government action is a substantial burden on the person’s ability to act on that belief.

If these two elements can be established, the government must then prove that it:

  • is acting in furtherance of a “compelling state interest,” and
  • it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

Strict Scrutiny
This is the most stringent standard of judicial review available, and is generally invoked in situations that either involve suspect classifications or constitutional challenges.

Suspect and Quasi-Suspect Classification
A suspect classification is any group of people that meet criteria suggesting they have been or will be the subject of discrimination. This criteria includes a history of discrimination, hostility, prejudice, and stigma against the group in question, which can be based on stereotypes; immutable or highly visible traits; little to no political power; their distinguishing features do not render the group unable to meaningfully contribute to society.

The Supreme Court recognizes race, national origin, religion and alienage (not being citizen of the United States) as suspect classes. Gender, parentage (legitimacy), and sexual orientation are recognized as quasi-suspect classes.

Sincere religious beliefs
First, let’s be clear: a religious belief does not necessarily mean a belief in God(s). In Welsh v. United State, SCOTUS ruled that “the definition of “religion” is not dependent on a belief in a “Supreme Being.” A person’s beliefs may be deemed “religious beliefs” if those beliefs occupy in the life of that individual a place parallel to that of God in traditional religions.”6

In Brown v. Pena, SCOTUS cited three things to determine whether or not a belief is a religious belief:

  1. whether the belief is based on a theory of “man’s nature or his place in the Universe;”
  2. which is not merely a personal preference but has an institutional quality about it; and
  3. which is sincere.

Unique moral preferences thus are not also religious beliefs. (So, for example, being a vegan without also being a member of a religious order whose institutional and accepted religious texts required a vegan diet, would not be a religious belief.)

And finally, how do you determine if said religious belief is sincere? There are multiple cases that discuss what a sincere belief is7 and determined that elements of sincerity for the purpose of religious belief includes following the rules and restrictions of the religion in question, attendance to appropriate worship services, acknowledgment of religious holidays, association with other people of the same religion, and so on.

  1. We’re just going to sigh and ignore proper science right now, okay? Because otherwise we’re going to go nowhere but to the nearest hard surface. With our heads. []
  2. I am not a lawyer; let’s just get that out of the way up front. []
  3. Emily Bazelon has more about these cases over at Slate. []
  4. Remember, I am not a lawyer. []
  5. So sayeth the IRS. []
  6. All referenced court cases in this section are from the document “Selected Cases on Religious Discrimination” prepared by the Office of Legal Counsel for the US EEOC. []
  7. EEOC. v. Ilona of Hungary, Inc; EEOC v. Union Independiete De La Autoridad De Acueductos y Alcantarillados De Puerto Rico; Hussein v. Waldorf-Astoria; Bailey v. Associated Press; etc. []

Long-term Antipsychotics May Be a Medical Mistake

I’ve debated whether or not to post this since seeing Robert Whitaker’s lecture slides and heard about the results of his talk to NAMI from friends who were there, but ultimately decided that since this is an actual personal issue for many people, due to your own health or those of people you love, it’s worth making sure the information is available as far and wide as possible. Consent to medication needs to be informed, blah blah bioethics stuff.

Before the TLDR, the gist is this: evidence suggests that the best treatment for schizophrenia is not continual medication, and that

a significant percentage of those with schizophrenia who did not receive antipsychotics or took them for a very limited time had better long- term outcomes than those who took them on an ongoing basis.

And perhaps even more importantly, there’s significant evidence that the long-term use of antipsychotics creates a vulnerability to future psychotic episodes.

It’s important to note that Whitaker isn’t saying antipsychotics shouldn’t be taken, or aren’t needed by all people who are on them. But he’s gone over something like 60 years of data, a lot of which is from longitudinal studies spanning 20-30 years, and it looks like fully 50 – 75% of patients could make a complete functional recovery sans long-term antipsychotic use:

Medication compliant patients throughout 20 years: 17% had one period of recovery.

Those off antipsychotics by year two who then remained off throughout next 18 years: 87% had two or more sustained periods of recovery.

The data was so compelling by 1992 that Finland switched to a selective-use of antipsychotics that year… and now has the best long-term outcomes of anywhere in the world. Fully 79% of people – not just schizophrenics, but anyone who might be given a neuroleptic for psychiatric issues – are asymptomatic at five years, with 80% either in school or the workforce.

A lot of the issue appears to be what is known as “oppositional tolerance.” Anyone with chronic pain recognizes the concept if not the phrase: it’s what requires a gradual dose increase in medication to continually receive the same pain management. Essentially, the brain compensates for blocked dopamine or serotonin receptors in two ways. In the case of dopamine, postsynaptic neurons increase their receptors for dopamine as presynaptic neurons increase their firing rate. The opposite happens for serotonin: as the presynaptic neurons decrease their firing rate, the postsynaptic neurons decrease the density of receptors. In each case, the brain is trying to compensate for the effects of the drug being released into the system. Depending on the kind of drug being taken, we change the structure of the brain making it even more (or less) sensitive.

And, in fact, it’s the very recognition of concept that makes me wonder if Whitaker’s results can be extrapolated beyond neuroleptic use for management of mental health related illnesses and into chronic pain management; perhaps it’s better to treat acute instances of pain (“flares”) and then gradually decrease dosing until the patient is off medication than to continually dose the body with drugs “just in case.”1

Anyhow, the very accessible and easy-to-read slides for Whitaker’s NAMI presentation can be found at this link, which includes detailed citations for those who’d like to read the journal literature. There’s also a good mother-of-patient perspective from Kathy Brandt at Mad In America. And if you really feel like having a sad today, you can read Carl Elliott’s comprehensive coverage of the death of Dan Markingson in the Seroquel studies, which should be required reading for anyone contemplating participation of themselves or a loved one in a drug study, or exposure to contemporary antipsychotics.

  1. Of course, I also have some admitted bias towards this idea, because it matches my experiences. We could easily call this revisionist history attempting to establish narrative control, too. []

Shame, Stigma and Angelina Jolie’s Breasts

As reactions continue to race around the internet about Angelina Jolie’s double mastectomy and reconstructive surgery – the actual discussions, not the Monday-morning quarterbacking of her decision or the utterly vile “but what about her boobies” reaction from that particular subgroup of men who manage to amaze me by their continued ability to manage basic functions like breathing – I’ve been sent links. And more links. And then a few more. Most are relatively easy to dismiss because they’re quarterbacking a personal decision or they’re vile, but then you get the ones that tiptoe closer to decent – and they still have problems.

One that’s been flying around the internets today is the Maria Konnikova piece on Salon. I’m actually not terribly fond of this piece, or other pieces that hinge their complaint on the cost of testing and Jolie’s supposed privilege by virtue of her wealth. For one, let’s put the cost of testing squarely where it belongs: on the fact that Myriad owns the patent for the test (something that is being challenged in front of SCOTUS this June).

Secondly, almost no one remembers that the Affordable Care Act considers BRCA1 and BRCA2 tests to be part of preventive care, and that by January 2014, it must be covered for everyone, period. Yes, the pre-existing condition limitations and grandfathered insurance clause limitations means some women won’t have coverage for the test between now and January, but it’s not the doom and gloom exclusionary process that seemingly everyone wants to focus on when it comes to cost.

Finally, and most importantly, the notion of reducing stigma and shame by simply talking about these things – and in Jolie’s case, taking ownership of a body that has been extremely sexualized in media and popular culture – is incredibly important. In particular, even though we’ve moved society to a point where people talk about breasts and cancer together, it’s still in a “race for the cure” dialog, rather than in mastectomies and surgeries and things that shame. For example, within a day of Jolie going public about her mastectomies, Zoraida Sambolin (CNN) announced her own breast cancer and the mastectomies she’ll be having in June – and she credits Jolie for her decision to go public with her own health concerns.

This is dialog that’s important. It continues to de-stigmatize and remove shame from very basic aspects of women’s biology, and doing so is only a good thing: we need people to be able to talk openly and honestly about medical issues, illnesses, and diseases that affect women, not just men, and the sooner we can normalize aspects of the dialog that include frank discussions of biology and body parts in non-sexualized terms, the sooner we can embrace the idea that a woman – and her sexuality – is more than her breasts.

A Shift in Expectation of Self

I really like this post on body policing, and in particular, how people seem to feel qualified to tell someone with a chronic illness that if they just did X – largely either adopt some quack routine or exercise – that all their problems would go away. In particular, I really liked this:

You’d never run a marathon with pneumonia, but a man with CFS needs to, because expending all that additional energy will make his problems go away?

You hear someone say that their life is awful. You hear them say that they’re in pain. You hear them talk about the medications, the doctor’s appointments, the flare-ups, the feeling of never being able to escape. You hear these things and you say “laziness”, but it never occurs to you that your own illnesses- a cold, the flu- make everyday tasks difficult- difficult enough that, quite often, you will complain about being sick and sometimes even skip out on obligations so you can rest up.

You hate being sick.

Admittedly, this was already on my mind, as this morning the fiancé1 and I were talking about some general goals and ideas of accountability, and he asked me to talk a bit more about how exercise can be a challenge with my chronic pain.2 For the first time, I really had to think about the activity level that I held myself to as “the standard:” I was at one point doing yoga and pilates twice a week each; going to the gym three times a week; hiking and walking all over the University of Washington campus; and going dancing several times a week.

I’ve failed to meet anything even nearing that level of activity since I left Seattle, though, and it’s been discouraging for a number of reasons. Exercising hurts, aggravating my chronic pain. I know I need to do this, but I don’t like being in pain, so it’s a disincentive. The fiancé listened to me complain a bit, and then asked a question that led to a lot of coins dropping all at once: he asked if, after a period of time, I’d “break through” and reach a point where exercising didn’t hurt, like most folks do when they’re just getting in to shape.

And I realized that I? Do not know. Today is really the first time I put together the other half of that equation: I was able to be that active while at UW because I was on a cocktail of medication that managed and controlled my pain. While dosing and makeup varied and was continually being adjusted, during most of this period of time, I was taking: 120mg XL morphine a day; 8-10 vicodin as needed for breakthrough pain; anti-nausea medication; two different anti-depressants to help boost the effectiveness of the painkillers; and a rotating schedule of sleeping pills. Not infrequently, this would all be topped off with an anti-anxiety medication (useful for tests and doctor appointments, which were almost always full of pain). So yes, no wonder it didn’t hurt to exercise – I had done a very good job at stripping away the pain.

It’s a bit weird and a bit of a relief to see that I’m actually not a failure or weak for not being able to live up to that standard of the past; I’ve managed to largely stop taking all medications for my pain (with exception of the occasional vicodin or high dose of Advil), but this also means I need to re-evaluate what I can and cannot do, and stop holding myself to a standard that I was only able to meet due to prescribed medications.

It is a strange shift in belief and concept of self, if nothing else.

  1. Oh yeah – hey, I got engaged! I guess that didn’t make it on to the blog, although it hit Twitter and I assume most of you read this from there. []
  2. Sappiness alert! One of the many reasons I love him: he has taken the time to ask and learn about limitations and range and how life can be impacted by living with a chronic illness, and I’ve never once felt like this was anything other than an effort to get more knowledge so that he can do his best to support and encourage me. []

Not a Privilege but a Right

A version of this post should have been up before Christmas, but technology decided to take a holiday a bit before the rest of us.

…and then there was the time the WordPress wasn’t actually publishing posts, and things got behind, and then it all just seemed like such a big mountain to crawl out from under. Also known as “what I like to call the last two weeks.”

First and foremost – and with apologies, since I did really drop the ball on notifying people – I did receive word that my biopsy results were negative and I am, thankfully, cancer-free. My doctor was also able to rush the results, so I found out prior to the holidays, which was also a relief.

It was a very strange experience, though, in that it forced me, for a week, to once again contemplate mortality and the specific desires I have for life. Also, as a friend of mine noted, it was one of the instances where, all things wrong with the American health system that there are, the fact that I was being treated here and not in the Canadian health system was a blessing, because it was a fast process.

And actually, still is a fast process. There are obviously still “body is not functioning right” issues going on, and this afternoon will hopefully resolve a lot of that. So I’ve gone from concerned issue to ultrasound to biopsy to results to treatment inside a month – that’s a time frame that really is enviable…and it’s a time frame made possible by virtue of having startlingly good health insurance and living in a place where, while I do have to pay for that health insurance, one of the benefits is access.

That access is an important thing, because just a few years ago, I didn’t have that access. I didn’t have health insurance for a few years, and prior to those years, what I did had didn’t even cover a wellness health visit outside a very overcrowded campus health center that wasn’t equipped for anything but colds, flus, and sexually transmitted diseases. I shudder to think of the process then – deciding whether or not to seek out care, or if this is just a discomfort I could live with. What if the biopsy result had been positive? In my current position, it would have sucked, but I have family nearby and loved ones willing to come take care of me, and access to top-of-the-line hospitals and people who will make sure that I receive excellent care (or else).

A few years ago, none of that was necessarily the case – especially the access to care.

I am privileged. I didn’t have to live with the stress and concern and fear that happens when you get a bad test result back and fall into that wasteland of waiting. I knew that, should the result be a bad one, I would have excellent and aggressive health care waiting for me, and that I would ultimately be in charge of the decisions made, and that what happened to me wouldn’t be based on limited services or access or my ability to pay (or not). These are the sorts of privileges a lot of women don’t have – especially low income women living in states where legislature is actively working to shut down what is often the only existing source of women’s healthcare: Planned Parenthood.

I was able to usher in the start of the year with toasts of “fuck cancer” – and it is the memory of that relief and that privilege that, in part, continues to motivate my political activism, support of the Affordable Care Act, and donations to various women’s health and activism organizations, including Planned Parenthood.

Because no woman should have to wonder “cancer” without knowing that, if it is, there is easy access to care and support. “My body is broken and needs fixing” should not be a privilege but a right.