The Rev. Mel Hoover thinks of it like a baseball game.
“Three umpires are having a conversation, and they ask the question: how do you call balls and strikes? The first umpire says ‘I call the balls balls and I call the strikes strikes.’ The second umpire says ‘I decide if it’s a ball or a strike.’ The third umpire looks at both of them and says, ‘Well, to tell you the truth, they’re neither a ball nor a strike until I call it,’ ” Hoover said.
Gretchen Borchelt looks at it as an issue of self-determination.
“You can’t say how your employee uses their paycheck, just as you shouldn’t be able to tell your employee which benefits they can use as part of the health insurance program,” she said. “It’s a form of compensation, and you can’t dictate to your employees how to use that compensation.”
Ed Rabel can’t understand why it isn’t an issue of constitutional rights.
“Forgive my ignorance, but why isn’t all of this a violation of the First Amendment? I don’t understand how a group professing a faith, or certain religious beliefs, can impose that will on individuals who are subscribing to a law promulgated by the state,” Rabel said.
Hoover is the retired co-pastor of the Unitarian Universalist Church in Charleston. Borchelt is senior counsel and director of State Reproductive Health Policy at the National Women’s Law Center. Rabel is a retired newsman and an independent candidate for Congress in West Virginia’s Second District.
All three were part of a panel discussion Tuesday hosted by WV FREE, Fairness WV, WV-ACLU and Planned Parenthood Health Systems about the U.S. Supreme Court’s recent Burwell v. Hobby Lobby ruling and its implications for state and national policy, individual rights and health-care coverage.
The case, decided in a 5-4 majority by the U.S. Supreme Court in June, exempts “closely held” for-profit companies, including craft-store chain Hobby Lobby and Pennsylvania-based manufacturer Conestoga Wood Specialties, the two corporations involved in the lawsuit, from the Affordable Care Act’s contraception mandate.
The ACA requires health insurance plans to cover all FDA-approved birth control, including sterilization and related education, without deductibles or co-pays. In its lawsuit, Hobby Lobby and Conestoga Wood argued that providing certain forms of contraceptives to employees would infringe on the companies’ “sincerely held religious beliefs,” citing the Religious Freedom Restoration Act, a federal law that says the government cannot “substantially burden” a “person’s exercise of religion” without compelling interests and a less-restrictive alternative.
Borchelt said despite trying to place limits on its ruling, the court has opened the door for similar cases arguing against other health-care coverages and even other rights based on religious exemption.
“This is the first time that it has been recognized that a for-profit corporation has this kind of religious standing. It’s taking this idea of corporate personhood to a new level,” she said. “The court’s logic isn’t limited, really. If you’re going to recognize a ‘closely held’ corporation, why not a publicly traded corporation? There really is no limiting principle once you open that door.”
Borchelt said roughly 90 percent of businesses in America could be considered “closely held.”
The ruling applies to four types of contraceptives — the emergency contraceptive pills Plan B and Ella, and both copper and hormone-based intrauterine devices, which the companies argue are abortifacients despite several court filings by medical organizations arguing the contrary, Borchelt said. The Rev. Kay Albright, the pastor of Bridges of Grace United Church of Christ in Charleston, said the distinction is important.
“‘Where does life begin?’ is the age-old question, and it is my sincerely held belief that it isn’t the day after you have sex,” Albright said.
There is currently one Hobby Lobby location in West Virginia. Borchelt said although the company offers self-insured plans, which are governed by national, not state laws, West Virginia has its own law protecting contraceptive coverage.
State protections are still in danger, however, Borchelt said. There are more than 70 cases similar to “Burwell v. Hobby Lobby” pending in lower courts, and a state RFRA was submitted to West Virginia’s House Judiciary Committee in January — a bill that could have sweeping ramifications for other state policy, according to Travis Crum, director of development for Fairness WV, the state’s largest LGBT advocacy organization.
“When we look at the LGBT movement in West Virginia, we’re looking at a potential ripple effect from this decision,” Crum said. “Right now in West Virginia, it’s perfectly legal for employers to fire someone for being gay, lesbian, bisexual or transgender, or for any reason based on their sexual orientation and gender identity. LGBT advocates fear this kind of decision allows religious beliefs that leeway, and where will it stop?”
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