• Sex discrimination and Hobby Lobby

    Here’s a question I’ve been puzzling over after Hobby Lobby. Why does the ACA require employers to cover birth control for women in the first place?

    After all, the ACA imposes very few requirements on employer-sponsored coverage. Annual and lifetime caps are verboten; there are some cost-sharing limits; and employers can be hit with a penalty if they don’t offer coverage. But there’s not much else.

    Why such a light touch? Because Congress trusted that, in general, the labor market will push employers to do right by their employees. In principle, that should include women employees. Women who want contraception coverage can bargain for it, much as they bargain for other fringe benefits. Employers with religious objections may have to pay women slightly more to make up for the absence of coverage or watch them walk out the door.

    The contraception mandate reflects an implicit judgment that the market doesn’t work well when it comes to birth control. Why? In the congressional debates, the suggestion was that women are still subject to various forms of conscious and (more often) unconscious discrimination. Employers may be systematically insensitive to women’s concerns in a way that the market can’t easily correct.

    Because contraception coverage for men isn’t a big concern, this sort of sex discrimination is easy to overlook. But the ACA arguably reflects Congress’s judgment that, if men needed birth control as urgently as women do, their employers would cover it without cost-sharing. On this view, the contraception mandate prohibits a form of sex discrimination by requiring employers to treat women the same as those hypothetical men.

    Which brings me back to Hobby Lobby. In her dissent, Justice Ginsburg warned that employers might invoke the decision to claim a religious objection to laws prohibiting racial discrimination. The Supreme Court brushed the concern aside: “Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

    But the Court’s distinction doesn’t look like much of a distinction at all. Substitute the word “sex” for “race” and it would serve equally well as a justification for the contraception mandate. After all, the contraception mandate is “precisely tailored” to end a particular type of sex discrimination. Or so Congress might reasonably conclude.

    To be sure, there are plenty of other ways of understanding what the contraception mandate aims to accomplish. Maybe it’s less an antidiscrimination rule than a public health measure. Plus, given Congress’s effort to protect religious objectors in the Religious Freedom Restoration Act, it’s not crazy to ask the government to extend to the company an accommodation that it has already extended to non-profit religious organizations. (See Austin’s take on that here.)

    What I don’t get, though, is the Supreme Court’s blasé assumption that this case has nothing to do with discrimination. It seems to me that it does.

    @nicholas_bagley

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