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Another Contraception Challenge, Another Misguided Argument

Brigitte Amiri,
Deputy Director,
ACLU Reproductive Freedom Project
Sarah Lipton-Lubet,
ACLU Washington Legislative Office
Witold Walczak,
Legal Director,
ACLU of Pennsylvania
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August 15, 2012

As we’ve written before, history has a way of repeating itself. Private companies that are challenging the federal rule that requires employers to provide insurance coverage for contraception without a co-pay are also repeating their same, misguided argument that the rule violates their religious liberty. Yesterday the ACLU filed an amicus brief in the most recent case raising these arguments – this time in a case brought by a lumber company.

The right to practice one’s religion, or no religion, is a core component of our civil liberties and is of vital importance to the ACLU. The ACLU is also fiercely committed to fighting discrimination and inequality, including discrimination based on gender. An important component of gender equality is the ability of women to have full control of their reproductive lives, and to be able to decide whether and when to have children.

Drawing on all of these principals, the ACLU’s brief places the company’s religious liberty arguments in a historical context. That history reveals that courts have long rejected the argument that employers can use their religion to discriminate against others, deny them rights and benefits, or foist their religion on their employees.

The availability of contraception has given women the ability to make their own decisions about whether and when to have children, which in turn has allowed them to make decisions about their schooling, a particular job or career, and their families. Furthermore, the contraception rule helps eliminate gender disparities in health costs: currently, women of child-bearing age pay 68 percent more for out-of-pocket costs than men, in large part because of reproductive health needs, including contraception.

An employer’s religious beliefs don’t get trump this rule, which is designed to eradicate discrimination. The same is true, as courts have ruled, for restaurants in the 1960’s that refused to serve African-Americans because integration was against the owners’ religious beliefs, or for schools that paid men more than women because men, according to their religious beliefs, needed more money as the head of the household. Religion was not allowed to be used to justify discrimination then, and it should not be used to do so now.

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