By Adam Sonfield
Senior Public Policy Associate, Guttmacher Institute
Burwell v. Hobby Lobby Stores on June 30 has already been the subject of reams and megabytes of analysis, speculation and rhetoric. You have undoubtedly read about how the majority’s decision, written by Justice Samuel Alito, allows closely held for-profit corporations—such as Oklahoma-based arts and crafts chain Hobby Lobby and Pennsylvania-based furniture manufacturer Conestoga Wood Specialties—to exclude coverage of certain contraceptive methods to which they have religious objections from the health insurance plans they sponsor for their employees and their family members, undermining a well-known requirement of the Affordable Care Act (ACA). And you have surely read about the concerns—raised in dissent by Justice Ruth Bader Ginsburg and commented on by the federal government and countless outside observers—that granting corporations religious rights that can let them ignore laws that apply to other companies could have a host of negative consequences for workers, customers and society.
(I have written here before about many of the key facts behind this case, including the benefits of contraceptive use for women and families and the importance of covering the full range of contraceptive methods and services without out-of-pocket costs, such as copayments or deductibles.)
As with many important Supreme Court rulings, this one raises far more questions than it answers. Here are some of the most important of those questions:
- How many women will be affected by this ruling?
This is a question that Justice Alito and the majority essentially ignored in writing their decision. A few things are clear: It does not affect women covered by Medicaid or by insurance they or their family bought on their own through the ACA’s new health insurance marketplaces or elsewhere in the private market. All of those women are still guaranteed coverage of contraceptive methods and services without any out-of-pocket costs.What is less clear is how many women with employer-sponsored insurance may be affected, although the vast majority should not be. The Court did not actually define what it means by a “closely held” corporation, and that could really matter. At least some such corporations—including some of the dozens already suing for exemption from covering birth control based on religious objections—may employ tens of thousands of workers. But it’s hard to imagine that large numbers of companies will declare themselves to have religious objections to some of the most commonly used medical services and supplies in the United States, particularly given that it would likely cost them money in medical costs and productivity and risk unhappy reactions among many of their employees and customers.
And there are additional incentives: Twenty-eight states have their own contraceptive coverage requirements, and few of them have religious exemptions that could apply to for-profit employers’ plans. Also, the U.S. Equal Employment Opportunity Commission ruled in December 2000 that the failure to cover contraception in an employee health plan that covers other prescription drugs and preventive care is a violation of protections against sex discrimination under Title VII of the Civil Rights Act. These policies are not quite as protective as the ACA’s guarantee—notably, they do not bar out-of-pocket costs for contraceptive care—but the Court’s ruling does not directly affect them. In fact, the Supreme Court made it clear years ago that the Religious Freedom Restoration Act—the federal law underlying the majority’s decision—does not apply to state la
- Is there another way to ensure that these women have contraceptive coverage?
The majority opinion hinged on the idea that the government had other options to ensure coverage that would be more acceptable to these objecting employers. Specifically, Justices Alito (for the majority) and Kennedy (in a concurring opinion) pointed to an existing “accommodation” that the Obama administration has established for nonprofit groups—such as hospitals, universities, and social relief agencies—that have their own religious objections to contraception. Essentially, coverage is supposed to be automatically arranged through an outside insurer or administrator so that it is seamless to the employee and, as the regulation puts it, the employer “need not contract, arrange, pay or refer for contraceptive coverage” to which it has religious objections. (The administration has also created a separate, complete exemption for a narrow group of religious employers such as houses of worship.)There are at least two big problems with applying the existing “accommodation” to for-profit corporations, however. First, in more than 50 lawsuits, religious organizations are already challenging this accommodation, with the plaintiffs claiming that a form they must file with their insurer or third-party administrator makes them complicit in their employees or students ultimately receiving contraception coverage. The Court’s majority in Hobby Lobby explicitly declined to rule on whether the accommodation itself would be acceptable, and it seems almost certain that the Court will hear one or more of these cases in its next term. Just three days after handing down the Hobby Lobby decision, the Court muddled things further by granting one of the nonprofits, a small Christian college in Illinois called Wheaton College, a temporary injunction allowing it to skip the required form and instead inform the federal government in writing of its religious objections. It is not clear that this adjustment to the accommodation would satisfy all of the groups challenging it. Nor is it clear, as Justice Sotomayor points out in a scathing dissent, that it is workable in practice, unless the government is able to identify every objecting employer’s insurer or third-party administrator.
And that brings us to the second big problem: It’s not clear that even the current version of the accommodation is working as intended. In theory, this arrangement should guarantee that employees and their family members have coverage of contraceptive care without out-of-pocket costs, even while their employer washes its hands of the matter. But so far, there is essentially no public information about how many nonprofits are making use of the accommodation, how many people are affected, or whether outside insurers and administrators are fulfilling their obligations. One troubling sign is the complaint by the head of a trade association for insurance administrators that some of his members have been unable to make the arrangements they need to get federal reimbursement for the contraceptive benefits they are providing (something the accommodation requires in certain cases).
- How will Congress and the Obama administration react?
In theory, Congress could respond to the Hobby Lobby decision in any number of ways. 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.” Advocates for contraceptive access in Congress have said they are working on legislative solutions to protect employees and their family members from their employers’ religious objections. On the flip side, conservatives in Congress and their allies have for years been looking to enact a sweeping religious exemption that would allow any employer or insurer to refuse to provide insurance coverage for any service required under the ACA for any religious or moral reason. But today’s Congress seems unable to complete even routine business, let alone come to an agreement on something this contentious. The only real certainty is that the Court’s decision will be talked about widely in the lead up to the fall elections.A fix by Congress would be most likely to have an enduring impact. In fact, without such a fix, the next president could—via regulations and without congressional input—eliminate the contraceptive coverage guarantee entirely or vastly expand the religious exemption. But for now, the Obama administration does have options it can take on its own to mitigate the decision’s harm. The most obvious choice would be to follow the Court’s suggestion and extend the existing accommodation to some for-profit corporations. Administration officials might also be considering changes to the accommodation in line with the Wheaton College order—perhaps, as suggested by health law expert Timothy Jost, by creating a new form that an objecting employer must file with the federal government and that includes contact information for their insurer or plan administrator.
Whether or not the administration decides to extend the accommodation, it might also add requirements to ensure greater transparency. Right now, there are no requirements for employers, insurers or third-party administrators to report anything about use of the accommodation to federal or state regulators. Requiring this type of notice would allow for appropriate oversight and enforcement. And the information collected, if required to be made public, would allow everyone—lawmakers, the courts, the media, potential employees and consumers, and the public generally—to judge whether this work-around is actually working.
- What other employee and consumer rights will be threatened?
The majority insisted that its ruling was a narrow one, emphasizing that the companies in these cases objected only to IUDs and emergency contraceptive pills, and essentially equating required coverage of contraception with required coverage of “third-trimester abortions or assisted suicide.” Moreover, they asserted that other federal coverage requirements—such as for immunizations, part of the same preventive coverage guarantee that encompasses contraception—might not meet the same fate if challenged, and declared that their decision would not protect employers wishing to discriminate in hiring based on race.Justice Ginsburg’s dissent disagreed sharply with that assessment, declaring it to be a “minefield” and a “decision of startling breadth” that allows “commercial enterprises [to] opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” She cites prior lawsuits from companies claiming religious objections to serving black patrons, hiring people who do not live in accordance with the owner’s sexual norms, or taking photographs for same-sex weddings, and cites a wide range of medical services—from blood transfusions to antidepressants—that are forbidden by some religions. It is simply too early to know who is correct.