Why the SCOTUS Birth Control Decision Isn’t ALL Bad News

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Hey remember back in the before times, when I made videos about things other than COVID-19? In January, which was about 6 years ago, I talked about how the Supreme Court of the United States was once again considering whether or not women should have access to basic medical care. I’ll sum it up in case you missed it: under the Affordable Care Act, religious organizations can opt to prevent their employees from getting insurance coverage for their birth control, so long as they sign a piece of paper saying that the government can step in and provide that coverage. A group of nuns decided that it wasn’t enough for them to not have to cover birth control — they wanted to make sure their employees had absolutely no way of getting that coverage, even from the government. So they sued and sued and sued until their case reached the Supreme Court.

And as we unfortunately guessed, the Supreme Court ruled in their favor, sort of: in a 7-2 majority, they established that the Trump Administration had the right to say that any employer, not just Christian (uh, I mean “religious”) could refuse to cover contraception. Let’s be clear, that sucks: no president should be allowed to wave a magic pen and sign away the right of half the population to access medical care. As Ruth Bader Ginsburg wrote in her dissent, “Accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs. Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”

However, it could have been worse. You might notice that the Christians won 7-2, while the court skews conservative only 5-4. Who were the two people who seemingly abandoned women? That would be the one liberal man, Justice Breyer, and one woman: Justice Kagan. That surprised me, because Kagan seems like someone who is generally on the side of reason, women, and separation of church and state. So I looked into it and discovered that conservatives are actually not super happy about this ruling: Fox News goblin Andrew McCarthy is honestly SHOOK that the decision was so narrow, and begrudgingly lauds Elena Kagen for playing 12D chess while the rest of the Supreme Court is apparently playing Fortnight.

You see, while the court ruled that a President can decide these sorts of exemptions, they COULD have also ruled on whether or not the original ACA mandate placed an undue burden on religious organizations. They did not do that — instead, they kicked it back down to the lower courts, so the Little Sisters of the Poor are going to continue their legal bickering for the foreseeable future.

McCarthy points out that Kagan probably joined the (inevitable) majority because she doesn’t think it’s a big deal that Trump be allowed to make whatever exemptions he wants if Biden can eventually just go back on all of them. McCarthy says this is all in line with the traditional progressive values of loving unaccountable bureaucracy and “erod(ing) First Amendment free-exercise rights.” Yep, that checks out. I’m a progressive because I love red tape and hate the Bill of Rights.

Okay, obviously McCarthy has a mild case of brain worms, but he does make a good point: Kagan and Breyer may very well have joined the majority in order to make sure a narrow ruling was delivered instead of a broad-reaching ruling that might have fucked over separation of church and state for decades. They threw women under the bus (125,000 people may now lose access to contraception) but with the conservative majority, that probably would have happened anyway. So they joined in and in return, they got to kick the Little Sisters back to the lower courts and Kagan got to write instructions for those lower courts telling them how they should probably find that Trump’s exemptions should be thrown out.

It sucks that this kind of legal wrangling is apparently necessary when the topic is separation of church and state and women’s rights, but here we are. This is what happens when people absolutely require health insurance in order to live good lives and when you inexplicably decide to tie health insurance to employment. Now we’re in the middle of an actual pandemic and more than one out of ten adults are unemployed. The ones who are employed now have to worry about whether or not their employer will decide to prevent them from getting healthcare from their own insurance carrier. It’s mind-boggling.

And when I say “healthcare,” I mean it: birth control is healthcare. I’ve seen a lot of people hemming and hawing on this point, or attempting to reach across the aisle by saying things like “well, birth control pills have many uses, like preventing heavy menstrual bleeding, correcting irregular menstrual cycles, managing endometriosis, preventing menstruation-related migraines, and lowering the risk of uterine cancer and ovarian cysts.”

And all that is absolutely true! But 86% of people take birth control pills in order to prevent pregnancy and that is healthcare. Preventing pregnancy is healthcare. Preventative medicine is healthcare. Vaccines, for instance, are healthcare. If you are traveling to some parts of South America or Africa, your insurance carrier will cover a vaccine to prevent you from getting yellow fever. Here’s something that has never happened: no one has ever argued that insurance carriers shouldn’t do that. No one argues that your employer should be able to stop your insurance carrier from covering your vaccine. No one argues that people should just not travel to those places if they don’t want yellow fever. And absolutely NO ONE needs to respond to that to list the other benefits the yellow fever vaccine might infer to people who don’t need it for travel. All of that would be extremely unreasonable — it would be unreasonable to demand that individuals change their travel plans to avoid a disease that they can easily vaccinate against.

So you know why birth control is healthcare? Because it prevents pregnancy. Here’s what pregnancy does to your body: high blood pressure! Diabetes! Preeclampsia, a serious condition that can kill you! Nausea, vomiting, anemia! 7% of women get depressed during pregnancy. 10 to 20% of women experience clinical postpartum depression. One out of a thousand people experience postpartum psychosis. Women who get breast cancer after giving birth experience a much higher risk of it metastasizing to the liver.

Oh also there’s a very high risk of bringing an unwanted child into the world with no one ready to take care of it for 18 years.

Birth control is healthcare. We have to underline that and not let people forget it, because if they do then we are headed for a world where the only way to get it is to prove you have endometriosis or something. Anyone who does not want to get pregnant should have easy, cheap access to birth control. Regardless of what the Supreme Court says about the roles and responsibilities of the executive branch of the US government.

Rebecca Watson

Rebecca is a writer, speaker, YouTube personality, and unrepentant science nerd. In addition to founding and continuing to run Skepchick, she hosts Quiz-o-Tron, a monthly science-themed quiz show and podcast that pits comedians against nerds. There is an asteroid named in her honor. Twitter @rebeccawatson Mastodon mstdn.social/@rebeccawatson Instagram @actuallyrebeccawatson TikTok @actuallyrebeccawatson YouTube @rebeccawatson BlueSky @rebeccawatson.bsky.social

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