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After Hobby Lobby: How Might Policymakers Mitigate The Decision’s Impact On Women And Families?

July 3rd, 2014

Editor’s note:  Also on HA Blog, you can read other perspectives on the Hobby Lobby decision by Tim Jost and John Kraemer.

On June 30, the U.S. Supreme Court handed down a ruling that has the potential to undermine an important provision of the Affordable Care Act (ACA) that establishes for women a federal guarantee of coverage for their full range of contraceptive methods, services, and counseling without any out-of-pocket costs. This guarantee is administered through private health plans, whether purchased in the individual market or made available through the insurers and plan administrators that provide group coverage.

The 5-4 ruling in Burwell v. Hobby Lobby Stores, written by Justice Samuel Alito on behalf of the Court’s conservative bloc, held that closely held for-profit corporations that assert a religious objection to some or all forms of contraception cannot be required to include such coverage in the health plans they sponsor for employees and their families. As emphasized by Justice Ruth Bader Ginsburg in her dissent (joined in whole by Justice Sotomayor and in part by Justices Kagan and Breyer), the Court’s decision could have serious and widespread consequences.

In the long term, it could encourage a broad range of efforts by employers to exclude, on religious grounds, benefits that they otherwise would offer, either as a matter of federal right (such as the immunization benefits that are part of the same preventive benefit requirement that establishes the right to contraceptive coverage) or because they are part of standard employer plans, such as blood transfusions, treatment for HIV/AIDS or mental health care).

Justice Ginsburg noted that the Court’s holding also could reach other employee protections and rights outside of the health benefits realm. Justice Ginsberg stressed that more directly and immediately, the Court’s decision singled out contraceptive care for special and inferior treatment and gave employers professing a sincere religious belief the leeway to interfere not only with how their employees make use of benefits that are their right, but also with the relationship between health care providers and their patients.

This leeway runs counter to the ACA’s overarching goal— to improve access to appropriate health care — and to the specific purpose of the preventive benefit guarantee, which is designed to eliminate barriers to the use of effective, needed care. From a legal perspective, there may be some faint silver linings in the decision. First, the Court did not threaten the existence of the federal coverage guarantee itself, only the means used by Congress to effectuate coverage.

Second, the Court did not reject the notion that the federal government has a compelling interest in promoting contraceptive coverage. This is a crucial finding for future cases that will test the impact of any effort to fashion a religious accommodation that uses employer plans as the means of securing access to contraceptives for women and families.

Third, although the decision spoke about completely alternative approaches to coverage, such as a new governmental program, the majority left the door open to a religious accommodation that continues to utilize group plan issuers and third-party health plan administrators as the pathway to coverage, even if employers object to offering such coverage themselves.

By contrast, Justice Ginsburg’s dissent highlighted the compelling nature of contraceptives to the health of women, children, and their families and sought to make clear that the basis on which the contraceptive coverage right rests — as laid out in our own amicus brief, among others — was quite strong. By eliminating cost barriers to contraceptive care and by facilitating access to contraception in conjunction with other primary and preventive services, the guarantee can help women and couples choose a method of contraception that they will be able to use most consistently and effectively.

And that matters because decades of scientific evidence and the life experiences of millions of women and families demonstrate that effective contraceptive use helps women to prevent unplanned pregnancies and to time and space wanted ones. That, in turn, improves the health of mothers and children, promotes women’s educational, economic and social advancement, and ultimately benefits families, employers, and society.

The Decision’s Scope

The actual scope of the ruling is far from certain at this point. It does not impact women who work for employers that do not impose their religious beliefs on their workers. Nor does it apply to women who receive coverage for contraceptive care through Medicaid, nor does it affect any of the women insured through the ACA’s new health insurance marketplaces or through other insurance purchased by individuals and families in the private market. All of those women are still guaranteed coverage of contraceptives without out-of-pocket costs.

The decision should not affect the vast majority of women with employer-sponsored insurance, either, although the number of companies and employees that could be affected is impossible to quantify. Notably, the Court did not actually define what it means by a “closely held” corporation.

The Internal Revenue Service has a definition tied to the number of people collectively owning a majority interest in the company, but the Court implied a narrower definition limited to corporations controlled by a single family. Either way, corporations such as the arts and crafts chain Hobby Lobby — and the several dozen others that have brought lawsuits against this federal requirement — may employ tens of thousands of people.

Yet, it seems doubtful that large numbers of other companies will decide to identify themselves as religious and claim an objection to contraception. In fact, corporations have numerous incentives to include contraceptive coverage in their health plans — as the vast majority already did, even before the federal requirement — including potential cost-savings from unplanned pregnancies averted, better employee productivity along with reduced leave time and turnover, and avoiding negative fallout among their employees and customers. After all, in everyday life, contraception is far from controversial: More than 99 percent of women aged 15–44 who have ever had sexual intercourse have used at least one contraceptive method.

Policy Makers’ Response

Also unclear at this point is how federal policy makers will respond to the Court’s decision, and whether they will take steps to mitigate the harm to women and families. Justice Alito (in writing for the majority) and Justice Kennedy (in his concurrence) both emphasized that there are other ways the government could ensure contraceptive coverage that would be less objectionable to these companies.

Specifically, they both zeroed in on the fact that the Obama administration has already established an “accommodation” for nonprofit organizations — such as universities, hospitals, and social relief agencies — that object to contraception on religious grounds.

That arrangement, established through regulations in July 2013, is designed to ensure that employees of these organizations have seamless coverage of contraceptive care without out-of-pocket costs. (This is separate from the complete exemption given to a narrow group of religious employers closely tied to houses of worship).

This accommodation itself is now the subject of more than 50 separate legal challenges, but in recent weeks two important decisions in the Administration’s favor, handed down by Courts of Appeal in the Sixth and Seventh Circuits, have provided support for the Administration’s approach, which essentially protects health plan coverage while enabling employers that object to coverage on religious grounds to take themselves out of the picture entirely, so that the plans act directly in accordance with federal law rather than through their employer agreement. It seems increasingly certain that the Court will decide the accommodation question during the next term.

The Obama Administration has stated that it “will work with Congress to make sure that any women affected by this decision will still have the same coverage of vital health services as everyone else.” Numerous advocacy groups and members of Congress supportive of contraceptive access have similarly declared that they will press for a legislative solution to protect employees and their family members from their employers’ religious objections, although details about what such a solution might entail have not yet been made public.

New law—assuming it is even possible, given the current political climate—would be the most certain and lasting way to address the problems that the Court has created. In the meantime, the decision is certain to be fodder for politicians of all parties in the fall elections.

In the short term, the most obvious path to mitigate the decision’s harm is for the Obama Administration to follow the Court’s suggestion and expand the existing accommodation to closely held for-profit corporations that assert a religious objection to some or all contraceptive services and methods. Yet, that accommodation can only limit the harm to the extent that it actually works in practice.

To date, there has been no publicly available information about how many nonprofit organizations are making use of the accommodation, how many employees and family members are affected, or whether third-party insurers and administrators are appropriately complying with their obligations. Indeed, there is no obligation under the federal rules for this sort of information to be reported to federal or state regulators.

Therefore, it is incumbent on the Administration to add requirements to ensure appropriate notice whenever the accommodation is used and to collect information about who is affected. That transparency would allow for appropriate oversight and enforcement, and provide important information to the current and potential employees and customers of objecting employers.

It would also enable lawmakers, the courts, the media and the public to gauge whether this arrangement is working as intended, among the nonprofit organizations currently taking advantage of it and any for-profit corporations that may be given that option going forward.

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6 Responses to “After Hobby Lobby: How Might Policymakers Mitigate The Decision’s Impact On Women And Families?”

  1. Liliane Stern Says:

    The Judges should have defined religious belief as being the freedom to apply that to one’s self not to someone else’s person. For example, a person who does not believe in wars does not have to participate in war but cannot prevent others of not doing so. How can other people claim the right to have the power on other people? If they are against contraceptives they have a right to not use any. But how can anyone have the Right to claim it their religious right to prevent others from doing so by refusing to pay for that part of their health coverage? I can claim it my religious right to not pay for medication for my employees because i do not believe it to be right, etc. The claimed religious right by Hobby Lobby, based on non-medical blind beliefs which deny others their health benefits, without which those people are harmed and by extension harms society, are not rights but imposed harms. Government has the obligation to protect the more than 51% of its citizenry against harm by throwing the Hobby Lobby’s claim out of court as a frivolous and harmful to society claim. The Judges were not objective and used their religion to influence their biased and harmful ruling. This should be declared a mistrial.

  2. Ed Says:

    The Hobby Lobby decision is so narrow in scope that it will have minimal impact.

    In spite of the hysteria by some, women will still have access to health insurance plans offered by their employers, will still have access to low-cost contraceptives through Walmart or their local drug store, and will not have to quit their existing job and find another with an employer whose insurance does cover contraceptives.

    Not every health insurance policy has to cover every condition or need. Remember the days of Major Medical? Many people and families were quite content with buying insurance that only covered major health issues. We have become conditioned to expect someone else to provide health insurance that covers everything under the sun – from scratched knees to heart transplants.

    Sorry ladies. Nature determined that only females can get pregnant. So if your employer just so happens to be the few with religious beliefs, next time you go to the store, buy your own contraceptives.

  3. The Mirror Says:

    Liberals to conservatives after the Sup. Ct. upholds the A.C.A.: “The Court has ruled on it. It’s established law now. Get over it!”

    Liberals to conservatives after the Sup. Ct. strikes down the HHS mandate: “We don’t care what the Court says!”

  4. Steve Says:

    Moving medications into the OTC arena will help lower costs…do I really need pay for a DR visit to get birth control? For most, the answer is no…

    There are many medications that could be safely sold over the counter but still require a prescription…who really benefits from this arrangement?

  5. Ellen Shaffer Says:

    Another view: Science Fiction Trumps Women’s Health.
    The Supreme Court’s majority decision in the case of Hobby Lobby et al. presents serious threats to women’s rights and to the public’s health. Efforts to override the decision at the state and federal levels require energetic support.

    As the dissent by Supreme Court Justice Ruth Bader Ginsburg, supported by dissenting Justices Breyer, Kagan, and Sotomayor, notes, “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations…can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

    The troubling ruling specifically grants a wide range of for-profit corporations the right to opt out of the federally mandated requirement to provide all FDA-approved contraceptives to employees through their health insurance plans, without co-payments and deductibles. If tolerated and uncontested, the ruling will:
    • Re-instate financial barriers to the most expensive forms of contraception, which are also the most effective;
    • Stigmatize contraception, which will depress effective use;
    • Eliminate discussion of the negative impact on the health and interests of the people most affected, employees and women, by assigning human characteristics and religious beliefs and rights to corporations, which are by design a legal fiction.

    Cost and stigma are barriers to health

    Contraception is widely used and recognized as “a fundamental health care service and a basic public health measure. The ability to plan, start, space, and discontinue bearing children has transformed everyday life for women, families, and communities. Along with other improvements in medical care and public health, it has vastly enhanced women’s autonomy, professional and educational achievement, and emotional satisfaction and helped extend their life span… Mandates requiring wider insurance coverage for birth control are associated with more consistent use of contraception.”[1]

    The major U.S. medical and health care professional associations recommend access to all FDA-approved contraceptive drugs and devices to safeguard the health of women, to reduce unintended pregnancy, as well as to protect the health of women for whom pregnancy may be hazardous, even life threatening.[2]
    From 2008-2011, the rates of pregnancy, births and abortions all declined steeply in the U.S. “Contraceptive use improved during this period, as more women and couples were using highly effective long-acting reversible contraceptive methods, such as the IUD.” [3]

    However, many women report that cost is a barrier to obtaining and using birth control consistently. Insertion of an IUD, the most reliable reversible form of birth control for women who tolerate it physically, and who choose it, can cost $1,000.

    Sharp inequalities in the rate of unintended pregnancy persist, remaining 5 times higher for low-income women and women of color compared with higher-income and white women. Almost half of all pregnancies in the United States are unintended – an exceptionally high rate.[4] The ACA requirement waiving cost-sharing is essential.

    In its 2011 final report of recommendations for women’s preventive health services to be included under the Affordable Care Act, ‘Clinical Preventive Services for Women: Closing the Gaps’, the Institute of Medicine (IOM), found that stigmatizing access and coverage would increase even further the high rate of unintended pregnancies, and discriminate against women.

    The Hobby Lobby owners believe that 4 selected methods of contraception are abortifacients. This is scientifically wrong in 3 cases, and questionable in a fourth. Nevertheless, Justice Alito says for the Court, on pp. 37-8: “it is not for us to say that their religious beliefs are mistaken or insubstantial,” as long as they reflect “an honest conviction.”

    Granting for-profit corporations protection as religious minorities

    The Hobby Lobby decision is startling in the absence of analysis of its likely negative impact on the health of the women employees for whom four effective and expensive contraceptives will no longer be available through their health insurance plans. Worse, the corporation’s argument would apply even if it were opposed to including coverage for any and all contraceptives.

    The Supreme Court decision fundamentally redefines for-profit corporations in a manner that privileges the views of business owners over those of employees and other citizens.

    A corporation is in essence a legal fiction, created to facilitate the business activities and purposes of groups of people by shielding them as individuals from the risk of liability that is the inevitable consequence of a business enterprise. The majority decision in Hobby Lobby, however, confounds this definition. It claims that a for-profit corporation can in fact have religious beliefs, because it is no more than an “association of a group of people.”

    The legal standard developed by an earlier Supreme Court to protect “discrete and insular” religious minorities requires that the course of action required to be taken to comply with a law must be the “least restrictive” possible on the religious beliefs in question.

    The current decision analyzes the potential harm to Hobby Lobby from complying with the ACA’s contraception mandate strictly in terms of whether or not its religious objection to that law is sufficiently accommodated. The equation essentially asks, is the mandate to move corporate funds from one corporate bank account to an insurance company’s bank account more or less burdensome to the corporation’s preferred religious belief about contraception, compared with, for example, moving some of the corporation’s funds into its payment of taxes, and having the government cover some of the cost of the mandate?

    Hobby Lobby’s sensitivities are apparently not offended when finances flow in the opposite direction. Mother Jones has uncovered over $73 million in investments on the part of Hobby Lobby’s retirement fund in a wide variety of companies producing abortion and contraception related products. These companies include Teva Pharmaceutical Industries, which makes Plan B and ParaGard, a copper IUD, and Actavis, which makes a generic version of Plan B and distributes Ella. Other holdings in the mutual funds selected by Hobby Lobby include Pfizer, AstraZeneca, and Forest Labs,which manufacture drugs used to induce abortions, and Bayer, which manufactures the hormonal IUDs Skyla and Mirena.

    The Court’s decision does not factor in the impact of the employer’s benefits choices on the vast majority of individuals who are not a corporation, but use contraceptives.

    For these reasons and for the public health’s sake, efforts must be initiated and supported to override the decision by enforcing the mandate at the state and federal levels that health insurance plans must cover the full range of FDA-approved contraceptives at no additional cost to the individual.

  6. Dan Says:

    Just wondering why birth control is so very important that it must be mandated, but dental care and eye exams are not mandated. Everyone should be getting eye and dental care but it isn’t mandated, WHY?

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