The Slippery Slopes of Burwell vs. Hobby Lobby

Today Nursing Clio is very happy to welcome Andrea Milne as a guest author. Milne is a Ph.D. candidate in modern U.S. history at the University of California, Irvine. A cultural historian, she specializes in the history of the body, gender, and sexuality. Her primary area of interest is in patient advocacy, especially during the first twenty years of the HIV/AIDS crisis. Her personal website is andreamilne.com. Follow her on Twitter at @MyPenHistorical. 

Everybody and their sister is blogging about the Burwell vs. Hobby Lobby ruling, so I’ll spare you all the gory details, if for no other reason than to preserve my sanity. Here, in my (admittedly biased) opinion, are the most important things you need to know:

• On Monday, June 30, 2014, the Supreme Court (aka SCOTUS) ruled in favor of Hobby Lobby Inc., which argued that family owned and closely held (“closely held” meaning the corporation has only a limited number of shareholders) companies can claim a religious exemption to the Obamacare mandate that employers of 50 or more people must pay for their workers’ prescription birth control. (Source: how to buy tesla shares UK)

• The two types of birth control in question, emergency contraceptives (such as Plan B or Ella) and intra-uterine devices, prevent the fertilization of an egg. Per Hobby Lobby, these procedures are forms of abortion, which makes zero sense, as there is, by definition, no pregnancy to terminate.

• Thanks to this ruling, for-profit companies will—for the first time ever—be allowed to hold religious views. Corporations get to be people, and now, apparently, they get to be people of faith.

• The majority opinion argues that this ruling is very specific, applying only to two forms of birth control, and only to closely held for-profit corporations. The justices behind the dissenting opinion disagree vehemently (more on this later).

• The decision was close: 5-4. The five justices that sided in favor of Hobby Lobby are all men.

If you want a more comprehensive review of the ruling, I recommend you hit up SCOTUSblog; they do expert work at breakneck speeds.

Justice Ruth Bader Ginsburg wrote a kickass dissenting opinion, in which she demonstrated the myriad ways in which the ruling puts the nation on a slippery slope. She sees this ruling as generalizable to other kinds of for-profit corporations. She also sees the possibility for future legal challenges that would:

extend [the ruling] to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[.]

I want to talk about two specific slippery slopes that have—thus far—gone largely unaddressed. One is a problem in the here and now, the other a problem that’s more likely to affect future generations of Americans.

Slippery Slope One: If for-profit companies can claim a religious affiliation, and be exempted from covering certain medical procedures on the basis of that affiliation, what happens to Truvada?

Truvada is the combination of Emtricitabine and Tenofovir, two antiretroviral drugs commonly used in the treatment of HIV. Almost exactly two years ago—July 16, 2014—the FDA approved Truvada for prophylactic use. In layman’s terms: persons at a high risk of HIV infection can take this drug, and in so doing reduce their risk of HIV infection. This is exciting news for sex workers, discordant couples (read: one partner is positive, the other negative), and especially exciting news for discordant heterosexual couples who wish to conceive a child.

Debates about the merits of pre-exposure prophylaxis (also known a PrEP) are ongoing, but with each new study that comes out, it’s becoming clear that if used correctly—as in, taking the pill every day—Truvada can reduce the risk of contracting HIV by 90%.

Exciting as Truvada is, its future is decidedly uncertain. As NPR reported in 2012, “It’s not cheap — around $13,000 a year — and it’s not clear what insurers will pay for it.”

Given the outcome of Burwell v. Hobby Lobby, Truvada now has still more hurdles to face. I’m a scholar of HIV/AIDS activism, and so I know just how tenacious those fighting to make Truvada accessible are and will continue to be. But even if Truvada does end up being covered under Obamacare, I can now imagine a scenario wherein religiously affiliated companies refuse to cover the drug because it somehow runs contrary to their “deeply held religious beliefs.”

I’ve never been particularly good at riding the religious right’s logic train, but I can imagine we’ll be seeing arguments in the very near future that pre-exposure prophylaxis contravenes God’s will, and represents a tacit endorsement of pre-marital and/or gay and/or ANY sexual activity. Sadly, there are still people out there (people with money, power, and influence, no less) who believe HIV/AIDS is a punishment from God. Call me a cynic, but I could see religious institutions begin issuing statements on the merits of treatment X and drug Y as a result of this ruling. I also have no faith that—should a case of this nature be brought before SCOTUS—they would side with reason above religion.

So there you go… if this case wasn’t already upsetting enough, it could also help undo our progress in the fight against HIV.

Slippery Slope Two: When the next major health crisis hits, we see discrimination and structural impediments to treatment emerge.

Upsetting a thought as it may be, it’s highly unlikely that HIV/AIDS will be the last killer STD the human race faces down. Scientists who subscribe to the “natural transfer theory” now believe that the first case of HIV/AIDS occurred in Southeastern Cameroon in the early 1900s; the epidemic as we know it began on June 5, 1981, when the CDC reported that five homosexual men in LA had been diagnosed with a rare form of pneumonia. It took a long time for the virus to reveal itself to us, and a criminally long time for the US government to do anything about it.

We would be foolish to discount the possibility that another killer virus is waiting in the wings. The question begs itself: what if AIDS happens again?

We all know the cliché that we study history to avoid making the mistakes of the past. It’s a stupid cliché. But in this case, it’s worth considering. If SCOTUS allows companies to “conscientiously object” to certain drugs, procedures, and courses of treatment, what will be the consequences for the next marginal population struck down by a heretofore unknown illness? When the next AIDS hits, is it so unreasonable to worry that religious institutions will carry at least as much if not more sway than they did in the 1980s? Is it unreasonable to worry that companies, claiming a religious mandate, will do everything in their power to discriminate against their sick employees? Is it so hard to fathom that corporate America will use its not-so-invisible hand to exact God’s so-called wrath, while a hamstrung judicial system gazes on?

I hope I’m overreacting. I hope we never slide down the slippery slopes I’ve presented here. I hope to God… just not the same God motivating Hobby Lobby’s crusade against equal rights.

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