IU legal expert: Hobby Lobby decision falls short on empathy, understanding

Whatever else you can say about the Supreme Court’s Hobby Lobby decision, it shows a serious lack of understanding and empathy for women and families who struggle to pay for effective birth control, IU Maurer School of Law professor Dawn Johnsen writes for the widely read site Scotusblog.

“The five-Justice majority opinion earned a failing grade on this as well as other aspects of its ruling,” she writes, arguing that a basic understanding of parties’ lives and experiences is essential for the court to engage in a judicious balancing of rights and interests.


Dawn Johnsen

Dawn Johnsen

Johnsen, the Walter W. Foskett Professor of Law, is one of several prominent legal scholars who wrote for a Scotusblog symposium on the case, in which family-owned businesses challenged a provision of the Affordable Care Act that required them to provide no-cost insurance coverage for a range of contraceptive services. A 5-4 majority of the court ruled that requiring coverage violated the First Amendment religious freedom of the business owners.

Johnsen co-authored a friend-of-the-court brief for the case on behalf of the Guttmacher Institute, a think tank focused on sexuality and reproductive health. She argues at Scotusblog that, for many women, contraception isn’t simple and effective methods aren’t cheap.

The typical American woman wishing to have only two children spends 30 years, three-quarters of her reproductive life, seeking to avoid unintended pregnancy. Half of all pregnancies in the United States (more than three million a year) are unintended. More than half of American women will experience an unintended pregnancy. Forty percent of unintended pregnancies end in abortion. Three in ten American women will have an abortion at some point in their lives. Reducing unintended pregnancy through the contraceptive coverage guarantee undeniably will reduce the need for abortion.

Johnsen writes that women choose contraceptive methods for a variety of reasons that may change over time. She says IUDs — one of the methods that Hobby Lobby refused to cover — can be 45 times more effective than birth-control pills and 90 times more effective than male condoms for preventing pregnancy. Nearly one-third of women, she says, would change methods if cost weren’t a factor.

She says the court’s ruling means that, for women of limited economic means, the religious views of their employers may trump their own beliefs and health needs.

Examples of disparate religious views would come from all sides. To take just one: We can imagine a devoutly religious, fervently anti-abortion employee who would like an IUD to minimize the chance of an unintended pregnancy but cannot afford one and will experience that unintended pregnancy and ensuing consequences because of a boss’s personal religious opposition, despite a national commitment to providing such services.

Comments from other IU experts on the Hobby Lobby decision were included in an IU media tip sheet.

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