Today the Supreme Court ruled on the Affordable Care Act’s (ACA) contraceptive coverage requirement in the case Burwell v Hobby Lobby Stores [PDF].
Spoiler alert: They ruled in favor of Hobby Lobby, in a 5-to-4 decision.
Hobby Lobby is a for-profit arts and crafts store chain that employs more than 13,000 individuals. It sued the government for infringement of its right to exercise religious freedom under the Religious Freedom Restoration Act. The company brought suit in order to limit the contraceptive coverage made available on the insurance plan it provides employees. Hobby Lobby did this even though a majority of Americans believe employers shouldn’t be able to opt out of the contraceptive coverage mandate.
Under the ACA the government set forth a set of health insurance coverage requirements for basic health care services — which includes a full range of FDA approved birth control methods. Access to contraception is one of the most basic sets of health care, in fact. Several national polls report that nearly 99% of all women use some kind of birth control method, at some point in their lives.
Objections to certain contraceptives
Now, to be clear, Hobby Lobby was not objecting to providing insurance that would cover contraceptives in general — only a choice few that its leaders believe fall outside of their definition of contraception. This point — of cherry-picking contraceptive options approved by the FDA — is disturbing, and terrible public health policy. The methods they object to happen to include extremely effective, long-term methods that have grown in popularity and accessibility over the past few years. Long Acting Reversible Contraceptives — intrauterine devices and implants — are effective anywhere from 3-12 years and are changing the face of reproductive health and family planning because they remove from the equation two of the most common birth control barriers — user error and cost. When covered by health insurance, these methods are likely to be one of the single most effective and economical points of health care for women of reproductive age.
And we as a nation are in desperate need of effective, long-lasting contraception. Why? The United States has one of the highest rates of unintended pregnancy among developed nations. Just how high is it? Nearly 50 percent. Half of all pregnancies in the United States are unintended. That’s one out of every two pregnancies. And if you are a low-income woman, your rate of unintended pregnancy is five times higher than that of a woman at the upper end of the income spectrum.
When we compare our teen birthrate to others, we fare even worse. According to the United Nations demographic yearbook, our teen birthrate is higher than the rate in the United Kingdom, Ireland, Israel, Canada, Germany, France, Norway, Italy, Sweden, Denmark, the Netherlands and Switzerland. We are tied with Romania, and Bulgaria leads by a hair. What is clear to me in today’s ruling is that our nation continues its collective failure to support women, particularly low-income women, to have true access to the tools to plan their families and ultimately their futures.
Part of basic care
The ACA has made incredible leaps in addressing some of the major barriers by making health insurance more accessible and ensuring that coverage meets basic public health standards –like covering FDA-approved birth control. In fact, bipartisan efforts at the federal and state levels have worked for decades to make contraception more accessible. For roughly 37 million women a year the most ubiquitous health care need is contraception. And I bet a good proportion of the 13,000 individuals employed by Hobby Lobby fit this profile. Ensuring birth control is included as part of a basic set of covered health benefits makes social, economic and pragmatic sense.
Contraception is a basic health care need that will span just about 30 years of a person’s life (the average span of a woman’s potential reproductive years). It might be hard to imagine a 27-year-old woman working three low-wage jobs to come up with $25 extra dollars a month to buy a pack of birth-control pills. It may be hard to relate to the 35-year-old mother of three whose husband’s employer is cherry-picking health coverage, which means she can’t get her birth-control injection this month. It might be hard to think about having to choose between groceries or birth control today. Except that it isn’t. Thirty-seven million people a year need access to contraception. Half of us have been or will be pregnant as a result of such difficult choices, and the other half of us know someone who has had to make that choice.
We are failing to meet an extremely basic health need for millions of women and their families across our country. It’s time to stop allowing the issues to get co-opted and start demanding our lives, our families, and our futures are recognized.
Alissa Light is the executive director of Family Tree Clinic in St. Paul.
WANT TO ADD YOUR VOICE?
If you’re interested in joining the discussion, add your voice to the Comment section below — or consider writing a letter or a longer-form Community Voices commentary. (For more information about Community Voices, email Susan Albright at salbright@minnpost.com.)
Hobby Lobby Decision
I have now read the entire decision including Kennedy’s concurrence and the dissent. The decision could have gone the other way except for Kennedy. Kennedy confirms that the government has a compelling interest in preserving women’s health including contraception (the majority assumes it but does not explicitly say so). But where Kennedy sees the decision for Hobby Lobby is in the failure of the government to provide evidence that the requirement is the “least restrictive means available” when HHS did make an accommodation for religious orders whereby the organization does not have to pay for the insurance coverage but rather the insurance company provides it. Kennedy’s rationale seems to be that if the government provides this alternative to religious organizations then he wonders why this same accommodation cannot be made to closely held companies like Hobby Lobby. On its face that seems like a reasonable conclusion and even I was sort of leaning that way when I read the majority opinion.
However, the Ginsburg dissent clearly gets at that argument as saying that the court has not yet held that this type of accommodation by HHS is lawful. Therefore, it is possible that at a later date the compromise accommodation of having the insurance company pay for the coverage as crafted to balance the two competing liberties here of religious belief and women’s rights may be held to be unlawful leaving women with no recourse. Kennedy seems to imply but does not come out and clearly say it….that he would never hold a decision that scrapped a regulatory accommodation like that. Kennedy also says that the decision is to be narrowly confined to closely held corporations. But Ginsburg blows that out of the water by mentioning Cargill as a closely held family corporation with over 140,000 employees and billions in revenue. Ginsburg also blasts the Religious Land Use and Institutional Person Act of 2000 that forms the basis of the majority’s reasoning for the decision for Hobby Lobby that extended the definition of person for religious purposes. Sort of weird to think that a religious land use statute is now used to limit women’s access to health coverage. I think Ginsburg is right that this decision released today is going to have wide unintended consequences and is not as narrowly construed as what the court tried to do.
What is most disheartening is that the hoops that women have to go through to get reliable and appropriate birth control is now increased just because of who you may work for. As Justice Ginsburg noted a minimum wage employee faces the cost equivalent of one month’s wages to obtain an IUD which is the most reliable and safe birth control available. Cardinal Dolan mentioned the other day that women can get their birth control from any 7-11 store shows just how out of touch men are on women’s health care. Hormonal forms of birth control is used to treat medical conditions beyond preventing contraception. For me, this just underscores how important it is to get Democrats out to vote this November and take back the House and hold the Senate. To paraphrase a famous Supreme Court Justice, your right to religious liberty stops at my liberty over my body.
Congratulations,
you are the first person I’ve encountered today who has actually read the opinion. (I have as well.)
The court may not render an advisory opinion. It may only decide the issues squarely before it and contested by the parties or necessary to resolve a contested issue. Thus, while the court may point to existing alternative approaches, it cannot wander off into exploring whether those alternatives are safe from some as yet unasserted constitutional claim.
On a more general matter: this decision is based entirely on two laws enacted into law following virtually unanimous votes in the House and Senate, both signed into law by Bill Clinton. Neither law was necessary. Both came in response to Supreme Court decisions. The first was seen by many as substantially altering the free exercise analysis, a point with which I disagree. Be that as it may, the Court then struck down a key provision of the first law, leading Congress to try again. In doing so, it put into place significantly greater restraints on government and much broader freedom for individual religious beliefs.
I, and everyone else, can only speculate whether the same result would have been reached had these laws not existed and Hobby Lobby been forced to make a straight First Amendment argument. Ginsburg concluded that such a claim would have been dead in the water. The majority didn’t address it, because it had no need to do so.
It’s worth noting, if only for historical purposes, that Scalia was the author of the decision which set this ball in motion: Oregon v. Smith. It’s also worth noting, for those who follow Scalia, that he criticized the majority (in a decision handed down just last week) for engaging in the same exercise his majority did in Hobby Lobby – pointing to numerous less restrictive means of addressing a government interest. In that case, he believed merely mentioning the alternatives was tantamount to endorsing their validity. One can only wonder whether he voiced this objection when Alito circulated his first draft of Hobby Lobby.
Thanks it was a bit of reading including all the footnotes but I’m glad I took the time to understand the rationale. After reading the decision, I can appreciate the alarm expressed in Justice Ginsburg dissent. Word choice in the majority opinion does not clearly limit this decision to closely held FAMILY corporations which means that ANY closely held corporation is now able to assert a claim. I agree that the court can only decide the issue squarely in front of it.
Would a better oral argument addressing the second prong of the test swayed Justice Kennedy? 1) compelling government interest 2) least restrictive means to accomplish the compelling government interest. The compromise solution for religious organizations and religious groups was the least restrictive means for that category but the mandate was the least restrictive means for the category of corporations?
I wish that Justice William O. Douglas was still around.
Now your Boss know what is best for women’s healtcare decisions?
Thank you for your post and detailed analysis of this court ruling.
What is to prevent another employer of a closely held corporation, who believes all forms of contraceptives is against their beliefs, from sueing under this ruling?
I am not a lawyer, but I see that Justice Ginsburg dissent as important.
My take away is we need more women on the Supreme Court.
And a footnote, the cost of a IUD upwards of hundreds of dollars is a barrier for many women to pay for out of their pocket.
“your right to religious liberty stops at my liberty over my body”
When an employer tells you you cannot use contraceptives, you’ll have a point. Right now, what you mean is your right to religious liberty stops at my right to force you to pay for my choices”
It’s one of the oldest planks of the Democratic Party.
This is precisely what this decision does. Women who are employed at these corporations that want to choose a particular form of contraception which has been FDA approved and included in the baseline standards of care from their insurance plan will now be unable to obtain the choice determined as best between the woman and her doctor. The corporation is saying that their insurance plan will not offer the baseline standard of care for women. Each of the four contraception items in dispute act not by aborting a fetus already implanted on the uterine wall, but rather from preventing a fertilized egg from implanting on the uterine wall thus preventing pregnancy.
Justice Alito proposes a solution by having the government offer the same compromise solution that it offered to religious based organizations and religious nonprofits where the insurance company would pay for the contraception and the government would reimburse the insurer. Here we are saying that corporations for the first time in the history of our Nation have religious beliefs that they can exercise in determining their corporate actions. There is no guarantee that this compromise solution would even be acceptable to the corporations involved.
The liberty of women to make their own choices on what is the best medical choice for their individual circumstances is unfortunately still a function of economic barriers. Insurance lowers that economic barrier making it affordable for women. I am saying that individual religious liberty was never affected by the insurance mandate at issue here. Corporations under this decision now can express an objection that denies a woman a constitutional right to liberty over the choices she makes for her own body. Just as with tax law where you cannot withhold payment of taxes because you find war objectionable, insurance coverage cannot be provided as a pick and choose proposition. That is why evidence based medical baseline coverage is used to determine what benefits are eligible for reimbursement.
My thoughts, too
Thomas,
Well stated.
Your access to birth control
has not been affected by this ruling.
Hobby Lobby’s health insurance policy had already covered 16 of the 20 birth control products that are mandated by Obamacare.
The company’s Evangelical owners only objected to those birth control products that cause a spontaneous abortion (Plan B and ella, and two IUDs). They oppose abortion. They don’t oppose contraception.
Given the myriad of birth control and family planning products that are available at your clinic, and clinics like yours, I doubt if there’s going to be a problem accessing birth control for the 50% of women in our society, as you point out, who make the voluntary decision to have sex without concern for the consequences.
What this case does point out are the problems caused when governments mandate that companies provide products and services that violate their 1st Amendment rights. Requiring a business owned by Evangelicals to provide access to abortion services (which is what those four products are) is a violation of their religious freedom just as much as mandating that a Muslim butcher provide pork to his customers.
We can avoid these sorts of dilemmas in the future by stopping governments from mandating things that should be left up to the individual to decide for themselves. Did you get that irony? You certainly wouldn’t accept a government mandate that those 50% of unwanted births be avoided by forced abstention from sex for unmarried or low-income women, would you?
Hopefully, with a change in government we can overturn all the mandates that are the basis of this misguided piece of legislation.
your (and the Green’s) biology is wrong. None of the objected contraceptive methods are abortifacients.
Regardless, the insurance is part of the employee’s compensation in exchange for their labor. The employer has now put restrictions on how an employee uses their compensation.
Sorry, but a spontaneous abortion presumes a fact that is a fertilized egg has actually implanted itself on the uterine wall. All four of the contraceptives that Hobby Lobby objected to act medically to prevent any egg from implanting itself……thus there is no abortion by any definition.
It would appear your argument is that life begins at the moment of conception and anything that interferes with the ability of that egg to go to the next step is equal to abortion. That is a belief that you are welcome to hold. How does a corporation determine that belief? What about the belief and liberty of the woman employee?
Closely held corporations can have dozens of shareholders. Should what is offered within an insurance plan be determined by medically based evidence or by your boss? Cargill has over 140,000 employees. Your boss already determines whether or not to offer insurance, but here the court is letting the employer/corporation reach further into the insurance plans to allow them to say yes to this and no to that based on a religious belief. That crosses the line of liberty to the woman employee who will be treated differently than women covered by insurance at other employers.
This decision makes a great argument for single payer insurance coverage and getting off from employer based insurance plans.
This will all be moot
once the employer mandate portion of this law kicks in after the 2014 elections.
Employers have historically provided health insurance as a benefit to attract and retain good employees. When the federal government mandates that they do it or pay a fine, millions of employees currently covered by a plan through work are going to find out just how well the individual insurance exchanges really work (or not.)
I agree with you, health insurance should be decoupled from employment and people should buy their own health insurance the way they currently buy auto or life insurance. Then maybe they’ll appreciate what the costs really are and when they’re paying for it themselves, they’ll be more interested in having a broader choice of plans than the one-size-fits-all plan currently required.
Wrong again, Mr. Tester
It is a myth that affordable birth control is readily available to those who need it most.
The High Costs of Birth Control
It’s Not As Affordable As You Think
link: http://ow.ly/yD4Pg
Surveys show that nearly one in four women with household incomes of less than $75,000 have put off a doctor’s visit for birth control to save money in the past year.
Twenty-nine percent of women report that they have tried to save money by using their method inconsistently.
More than half of young adult women say they have not used their method as directed because it was cost-prohibitive.
Women are struggling to pay for birth control at a time when they need it most.
When sex is
required for survival such as food and water, you might have an argument. Last I heard, sex was a voluntary activity used mostly for recreation. Let’s not pretend it’s anything else.
Voluntary, Mr. Tester? Always?
Most women would probably laugh at you Dennis.
And of course the burden of pregnancy falls exclusively on them.
This is just another piece of evidence that women can use to decide whether the Democratic Party or the GOP is acting in their interests.
speaking of recreation…
And so Viagra remains covered by employers’ insurance, why?
comparison
Viagra helps the human body work correctly,
The morning after pill helps the body malfunction.
Good God….
So in your world, it’s perfectly acceptable to seek medical help to be able to have sexual intercourse, but it’s not okay for a woman to take a pill the day after to avoid the the possibility of an unwanted pregnancy? We’re not talking about a 3rd trimester abortion here…we’re talking about a possible fertilized freaking egg the day after intercourse. Seriously, you people need to take the leap back into reality, pronto.
I am of the belief
that more women should just say “No” to men that believe that Viagra is acceptable and birth control is not.
Personally
I am indifferent, though I think proactive responsible birth control is better than reactive birth control.
And I can empathize with those that believe differently than myself. I wouldn’t want to forced to pay for something I believed was harming another human being, just so adults could have a “get out of jail free card” after doing something irresponsible.
Respectfully, I don’t think you are…
You obviously are not indifferent. You are posting multiple times in a comment thread about how Viagra should be covered by insurance, but birth-control should not be… because it’s OK for a man to want to have intercourse, but for a woman to want the same thing, it’s “irresponsible?”
Silly
I said Viagra supports the normal healthy function of the body, and the morning after pill and IUD work to defeat the normal healthy function of the human body. Nothing more. Nothing less.
And I don’t think I have ever said that ALL birth control means should not be covered. That would be silly since I have benefitted from easy access to birth control pills for ~30 years.
I said that religious folks have a point that IUDs and the morning after pill can result in the flushing of a fertilized egg, which to them is very wrong. Therefore it is incorrect to make them pay for what they consider murder.
By the way, if an unwanted pregnancy occurs both the man and woman were irresponsible. It take 2 to make baby.
“I Don’t Want To Pay For It”
So, it’s cheaper to pay for the (still covered) prenatal care, delivery care, postnatal care, and the public cost of sheltering and educating a unwanted child, than to pay for birth control? I hope whatever you’re smoking isn’t covered by your insurance.
High Costs
For most of the methods listed, the high cost is almost entirely involved in the doctor’s visit, not the actual product.
Foolproof method to ensure widespread access to effective contraceptives:
Donate money & give it away. Problem solved.
Wake up, Mr. Swift
Your method has been tried at Planned Parenthood and it is not working.
Perhaps that is because people who go to Planned Parenthood are harassed for seeking services there. And people like you equate contraception with abortion.
Preggers
I was just curious about a little context for some of these figures on pregnancy. Fifty percent seems pretty darn high on the face of things unless other western countries are in the same ballpark, say 45% or 49%. If we’re just a little bit higher than they are, then I wouldn’t be too worked up about our figures.
Here’s what I found out from a little browsing around the radio tubes on the interwebs.
Birth rate for teens per 1000 women.
Canada: 16
Romania: 39.3
UK: 26.4
Iceland: 19
Norway: 11
Sweden: 7
Italy: 6
Netherlands: 5
U.S.: 34.3
We’re not just a little bit higher than other western countries, we’re a LOT higher.
The demonstrates that America needs to get on the ball and implement more fact-based programs and less pandering to the unscientific religious people. We need more sound reasoning in our public life, not religious missives that were written for a society that existed thousands of years ago.
More money for sex education?
Based on your figures, it seems like the union schools have done a very poor job teaching teenagers basic biology – along with math, science, and history.
More like
The voters have done a poor job at electing school board members. But then, when conservatives are willing to throw money at poorly vetted candidates in order to further their agenda, it hard to blame them. When an election can be won with a few yard signs its easy pickings.
Products from China
I have and will never set foot in a Hobby Lobby store, but I presume that they carry products made in China.
The Chinese government REQUIRES actual abortion in certain cases, and yet here is Hobby Lobby, supporting those actions with their purchase of Chinese products. How wonderfully hypocritical of them. They are true Christians, no doubt, building up their bottom line on a foundation of aborted fetuses. As true Christians they undoubtedly are familiar with the scriptural admonishment that one cannot serve two masters. So, which will it be, Green family? Will it be God or mammon?
Joel – I think you are reaching too far….(just a little…)
But thanks for your unwavering support of religious instutions, pro-life groups, and conservative think tanks. Love those tax breaks you supply so graciously. (same logic)
Like most conservatives, you fail to understand that many, if not most, liberals realize that their tax dollars support things that they would never directly support on their own. We liberals also understand the collective power of community which allows us to do things that we could not do on our own. This is something conservatives either find objectionable or simply do not grasp.
In the case of Hobby Lobby, there is a different dynamic at play. In either case (employees’ contraception use and Chinese abortions) they are not directly paying for abortive measures. But in both cases, their dollars go to people or organizations that provide abortive procedures.
You’ll find that I’m willing to let people believe what they want to believe. I only ask that those beliefs be applied consistently. If you don’t want your money supporting abortion, fine. Then make sure your money isn’t going to a government that requires it. Otherwise, I’ll have to question your motives and the sincerity of your beliefs.
And this lovely company’s 401(k)
Employee retirement plan invests heavily in pharmaceutical companies that manufacture the birth control products which Hobby Lobby refuses to cover for its employee. Pure hypocrisy.
You Want Widespread Access?
If you really want more widespread access, the best approach would be to move most of it from out behind the ‘counter’ and stop mandating doctors appointments. The doctor visits, in particular, act as a barrier. Even if there was no cost associated with them, the inconvenience would still stop some women (probably especially poor women) from taking the time to go.
More here: http://reason.com/archives/2014/03/26/over-the-counter-birth-control-pills-us
Of course, if the purpose behind adding birth control is really to bring Christian companies to heel, then by all means, start a big fight over one of the symptoms instead of fixing the problem.
Yes Pedor
We wouldn’t want a doctor’s supervision when utilizing products that could have quite nasty side effects, I’m sure webMD should suffice, right? Not to mention that outside of of the emergency pill, the majority of this decision is in regards to IUDs. I suppose you’d like women to self administer those as well? Then again, since this decision will mean, eventually, that pharmaceutical retailers will only stock what they find morally correct, women will have to hope that there is a non religiously inclined business in their area from which they might obtain the products in the first place. As I expect many businesses to “find religion” in the coming months, that might turn out to be the hardest task of all.
Birth Control
I am really really angry about this decision. I also noticed that 2 women and several men have commented on this.
My mother had 11 brothers and sisters. They still cry about how how hungry they were, when they relive the “old times” when they had flour and water to eat , (They are in their 60s and 70s now)
But I am sure your christian god knows best. And if I am not sure, my christian boss will surely decide.
I will never, ever, ever, set foot in Hobby Lobby store.
You’re joking, right?
Good thing your grandmother didn’t feel as you do or you wouldn’t be here to write that comment.
Birth control
You do realize that birth control can be used for *planned* pregnancies, not just *no* pregnancies, right?
Educate yourself about birth control. That way you’ll improve your credibility in these discussions. A little, anyway.
Made sense to me
Birth control equals fewer kids.
In reality…
Birth control equals fewer _unplanned_ pregnancies.
Maybe they wouldn’t have had 12 kids and the commenter wouldn’t have been born. Unless Grandma was one of the first 3 kids or so. That is all we are saying.
Are you Joking?
That’s a rather astounding mental leap, Dennis.
I walked into Hobby Lobby
once by mistake. Was looking for Big Lots. I could not get out of there fast enough. All of the phony scripture signs drove me right out. Why would anyone work there? It is almost worse than Walmart, though that is hard to believe.
What I get from this
is: It is mens’ uncontested right to have erections until they are 110. If women want to control their reproductive functions, it is verboten. I wish more women would say “NO” to Neanderthal knuckle-draggers. Too many men think only with the smaller head. It rules their lives, and makes idiots out of many of them.
Actually
Hobby Lobby only was against a couple of methods. The ones that could flush a fertilized egg.
I didn’t hear anyone complaining about the pill, patches, injections or other methods that women can use to control their reproductive functions. What is your rationale for making a mountain out of this mole hill?
I don’t think health insurance covers condoms, spermicide, etc.
The rationale
is that it’s none of Hobby Lobby’s freaking business what a woman decides is the best form of birth control for her particular situation….period.
Woman Decides
The woman is still free to spend her cash and flex spending compensation on any legal form she chooses.
If the woman works for a company that has one
but, not everyone has a flexible benefits plan. You just assume everyone is in the same situation you’re in…it’s unbelievable how myopic you are..