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Post-Hobby Lobby, how will affected women get contraception coverage?

REUTERS/Jonathan Ernst
Anti-abortion protesters cheered the Supreme Court's ruling in Burwell v. Hobby Lobby, which allowed certain companies to opt out of providing coverage for certain contraceptives in health plans offered to employees.

White House spokesman Josh Earnest said Monday that President Obama, while opposing the court’s ruling, would prefer asking Congress to write a legislative response.

“It is our view that Congress needs to take action to solve this problem that’s been created, and the administration stands ready to work with them to do so,” Earnest said.

That’s an unlikely path forward, though, especially if the administration hopes to follow the government-funded contraception route. Given that most Republicans still oppose the health care law, it’s hard to imagine the GOP-controlled House signing off on an Obamacare expansion. And, as Alito noted in his opinion, no one knows what the final cost will be, since the government hasn’t even calculated how many women will be lacking contraception coverage post-Hobby Lobby.

Dorsey and Whitney health care lawyer Tim Goodman said it’s unlikely the administration would try expanding government-funded contraception on its own.

But combine new Obamacare regulations with a still unknown price point, and add the fact there are a dwindling number of congressional work days between now and November’s elections, and there’s next to no chance lawmakers will move forward with a legislative response any time soon.

Administration could rewrite regulations

With Congress out of the picture, that probably leaves some type of administrative fix.

“HHS [Health and Human Services] itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs,” Alito wrote. “HHS has already established an accommodation for nonprofit organizations with religious objections.”

Last year, the administration released rules allowing religious nonprofits to opt out of paying for contraceptive coverage through their health care plans. The nonprofit’s health care provider would then provide the coverage on its own, at no additional cost to employees.

It took the government more than three years to write that regulation, but Goodman said regulators could theoretically have the new rules finalized as soon as the end of the year.

Of course, depending on how the exemption is administered, it could run into legal challenges of its own. A nonprofit from Colorado challenged the mechanism by which it applies for the exemption last year, arguing that the paperwork required to apply for the exemption makes it “a party to the mandate.”

Congressional response

Many legal analysts have said Monday's court ruling has a relatively narrow practical impact. It affects only closely held (usually family-owned) companies who object to offering employees contraception on religious grounds. Hobby Lobby's complaint also dealt with just four of the 20 contraceptive methods mandated for coverage under the ACA. The court dismissed — at least for now —  potential religious objections to other coverage mandates such as vaccinations or blood transfusions, though Goodman said the ruling will probably mean eventual challenges to those mandates as well.

In a statement after the decision, Bachmann said he was “extremely encouraged” by the court’s decision.

“At its core, today’s decision was about the right of individual and family business owners to be free from government mandates that force them to deny their sincerely-held religious beliefs,” she said. “America was founded on the principle of religious freedom, and there is nothing more fundamental than the First Amendment.”

Franken, who is up for re-election this year, said he was “very disappointed” in the decision and said, “A woman’s boss should never be the one to make health care decisions for her — these decisions should be between a woman and her doctor.”

Rep. Betty McCollum called it “an attack on the rights of women and sets a dangerous new standard for corporate personhood.”

Precedent for other cases

Hobby Lobby will serve as precedent for scores of lawsuits nationally against the contraception mandate, including several from Minnesota. 

“This a big victory for sincere religious objectors to the HHS mandate,” said Erick Kaardal, a Minneapolis attorney representing seven different companies in their lawsuits.

Kaardal’s clients included companies ranging from manufacturers to investment firms with workforces from 10 to 70 employees, all of which are closely held companies run by Catholics. All of the cases — including one from Minnetonka-based Annex Medical, which argued against the mandate in a federal court in October — will be analyzed and decided in the context of the Hobby Lobby decision. 

Kaardal couldn't say how his clients would react to a new contraception coverage program like the nonprofit exemption — their concerns over the contraception mandate are guided more by the Catholic church's teaching rather than the nuances of health care policy, he said. 

Either way, “the little people won this time,” he said. “For very, very few people, this is a really important decision.”

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Comments (47)

Interestingly, within hours

Interestingly, within hours of the Hobby Lobby decision, the 11th circuit Appeals court cited Alito's decision to strike down as a violation of RFRA the very secondary accommodation that Alito and Kennedy used to assure themselves that their decision would not impact access to birth control.

Males rule

Interesting how again males decide reproductive rights of women.
Women should understand that presidential elections have consequences and the Supreme Court is as polarized as Congress and with males dominating both institutions.

See the photo

accompanying this article? Not all women think alike.

Yeah...

all eight of the them.

Oh yes the pro-life republicans

Who are pro-life until the babies are born but then want to make sure that they receive no health care in their future.

All of this faux outrage is

All of this faux outrage is ridiculous. This ruling, despite what leftist would have us believe, in no way allows anyone to "dictate" what contraceptives a woman may use.

The outrage is not faux, Mr. Swift

Just another reason for women to vote for the party with their best interests in mind.

That would not be the GOP.

Gods, but I hate it

when I have to agree with Mr. Swift.

The decision permits employers who claim religious reasons for declining to provide birth control the right not to pay for that coverage. The employer may be an individual, a partnership,a closely-held corporation, or possibly a limited partnership or other closely-held business entity. Whether it can be extended to publicly traded corporations remains to be seen.

The majority rationale opens the door to many of the scenarios described by Ginsburg in her dissent and, in the last 24 hours, by critics of the decision.

Hobby Lobby does carve another hole in the coverage afforded by the ACA. Whether and how Congress will respond remains to be seen. My preference would be the repeal of the laws on which HL is based, the RFRA and RLUIPA, two bi-partisan laws enacted almost unanimously by Congress in the Clinton erawith too little thought to what was being done by attempting to modify more than 200 years of Supreme Court precedent. There are reasons the Supreme Court has 9 justices instead of 400. Hobby Lobby reflects many of them.

The idea that any

Corporation or business entity of any type is a person is a legal joke favoring big business and nobody else. You are in dream land if you think Congress will do anything.

Easy

The women can just pay cash for the IUD or Morning After Pills...

Just like men and women pay for condoms...
Just like motorcyclists buy helmets...
Just like everyone pays for bandaids...

How did risk mitigation devices become a "healthcare" right? As I have asked before, when did pregnancy become a disease that healthcare insurance needs to terminate?

A better question

is when did you and your faux morality become the arbiter of any woman's reproductive health choice? How a woman deals with clump of cells or a fertilized egg in their own body is their business, not yours. Grow a uterus, then get back to us...

A different question

is when did you and your faux morality become the arbiter of employee compensation?

To pay money or a benefit seems like none of our business, it should be between the "at will" employer and "at will" employee.

I choose to use some of my salary to buy and wear my motorcycle helmet, I think women are free to do the same without impinging on the religious rights of others. No problem...

A little education

These are not equivalent.

As was pointed out by Ruth Ginsberg, the cost of an IUD can represent a significant financial outlay for low income women - sometimes the equivalent of one month's salary.

And morning after pills are to be used when other forms of birth control fail (e.g. a condom breaks - it happens, you know) or after unprotected sex (that happens, too - and the woman doesn't always have a say in the matter whether you like that inconvenient truth or not). Morning after pills are NOT to be used a routine method of birth control.

Please educate yourself. All methods of birth control are NOT created equal.

What religious rights?

A woman's reproductive health care choice has nothing to do with your ability to worship whatever you want. I couldn't give a rip about your decision to wear a helmet...apples and oranges.

Right to not kill a fetus

Or in this case a fertilized egg.

Another brick torn from the

Another brick torn from the wall of separation.

Next up: Hiring discrimination against "sinful" job applicants and perfunctory, unchallengeable dismissal of employees who do not conform to arbitrary religious tests.

Exactly, Jim...

the only religious freedom that Hobby Lobby was interested in was their freedom to foist their religious beliefs on others. The fact that Appelen thinks a company has a right to delve into an employees private life because they provide a paycheck for services rendered is disturbing.

Beyond disturbing...

I'd say utterly absurd is more apt.

None is so blind as he who will not see.....that what goes around, comes around, often in ways not envisioned.

T2

Disturbing...

Private citizens and their companies being forced by the government to pay for a service that they equate to murder.... Especially when they are providing other compensation that can be used to pay for those "private" choices. And if they use that money... The company will be happy not to know...

I'll be clear...

anyone thinking that destroying a fertilized egg with a
"morning after" pill equates to murder is nothing short of delusional and should seek help. Hopefully, their employer won't stand in the way of that help with an equally deluded "religious objection."

Souls

I am not smart enough to know when a soul enters a human. (ie conception, heart beat, viability, birth, never)

That is why this is a belief issue.

Bull....

it's a CONTROL issue. An attempt by religious puritans to punish women for behavior that they find morally repugnant. Stand by for the inevitable religious objection argument to withhold medical procedures for ANY group deemed unworthy by unscrupulous, hypocritical employers. The only good thing to come out of this ruling is the backlash that its received and the subsequent thrashing that the GOP will endure because of it.

T2

No one is controlling the women, they can still use their compensation and flex spending dollars to pay for these questionable methods of birth control.

Do you really think the moderates are going to punish the GOP over a SCOTUS ruling?

did you know

that a person doesn't recognize itself as an entity until around the age of 3? That's when they become self-aware.

I believe that if society allows all "potential" persons to be brought to term then that society is responsible for that person. It owes that person a good life as much as it's parent or parents do. Hobby Lobby is as responsible for a new life as the parents are if one of them is employed by Hobby Lobby. But Hobby Lobby, like most republicans, stops caring for the life of a soul once it enters the world. Hobby Lobby needs to raise the pay for their employees.

T2

The gift of life isn't enough? Now you want people to give more.

The responsible parties are those who have sex without adequate protection. Please consider holding them accountable for their irresponsible actions.

And yet you would put

And yet you would put barriers to prevent women from getting that protection. Irresponsible, indeed.

What barrier

Just pay for it like condoms, helmets, or other forms of injury protection. Since apparently preganancy is consider an injury in these cases.

Hobby Lobby pays x2 the

Hobby Lobby pays x2 the federal minimum wage to start. They believe it is their duty as Catholics and Christians.

Another brick in the wall of separation gone.

Talk about foisting beliefs...

Hobby Lobby hasn't delved into a single employee's private life. There isn't a shred of evidence that disciplinary action has been taken against any employee who wanted to use any of the medical treatments that the owners objected to. In fact, I have yet to read of any Hobby Lobby employee who disagrees with the owners about their lawsuit. If you have any actual evidence other than your trite dogma about getting out of someone's womb you ought to cite it.

Your shrill denunciation of Hobby Lobby as forcing an employee to do something is ridiculous. Any employee is still free to do the exact same thing as before the decision. The owners just don't have to pay for it. Your pompous protest is just more evidence of Berg's Seventh Law.

Berg's Seventh Law?

Seriously? If you want to retch up the rant of some blogger as the crux of your argument, you've already lost the war, pal. Disciplinary action has already taken place...by refusal to include a legal means of reproductive health care in a benefit package based on the moral whims of employers who happen to be religious zealots. If you can't see the precedent that sets and the possibility for a variety of situations...situations that might affect YOU at some point, you're beyond hope.

Thanks again to the moderator

Condoms for everyone, sex everyday for a month for less cost than the pill, prevention from STDs, and if paid for by the male, at no cost to the woman ensuring her reproductive freedom!

Effectiveness

Right, because an effectiveness rate of 18 or more pregnancies per hundred women in a year (condoms) is hardly any different from an effectiveness rate of 9 or more pregnancies in a year (pill) or less than one pregnancy in a year (IUD).

Yup. Condoms are exactly the same as those other two. Hardly any difference at all . . . . . .

http://www.cdc.gov/reproductivehealth/UnintendedPregnancy/PDF/Contracept...

I noticed you left out the STD's

I also don't recall comparing effectiveness. And don't forget the cost to the woman if she insists that the male partner provide the birth control. Free. No cost.

Relevance

You don't think effectiveness is relevant when discussing the relative cost and availability of various means of birth control? No wonder the Republicans think "shopping" for health care is a task that should be based on cost alone.

Is this for real?

This boils down to: "Hey women, as long as you've got a man who pays for your contraception, you are free!"

Please realize that these flippant and disrespectful attitudes and sentiments are why people claim (rightly so) that there is a Republican War on Women.

Yes, I see how that is

Yes, I see how that is different from "Hey women, as long as you have an employer to pay for your birth control, you're free!"

Not quite

Apparently you missed the part where employer-provided health insurance is considered part of that employee's compensation package. The employee EARNED that benefit, along with the wages and other benefits they worked for.

And don't forget the fact that many (I don't know the percentage) employees are required to chip in for part of that coverage. It's not simply being "given" to them.

Yes, I see EXACTLY how that is

In your worldview, a man who gets viagra provided by his employer provided insurance _earned_ that as compensation for his work. If a woman gets contraception provided by her employer provided insurance, she's taking that as a free handout.

Survey

Who on this comment string is against proactive birth control being covered under health insurance plans?

By this I mean the birth control pill, patches, injections, diaphrapms, etc.

The Liberal contingent seems to think Conservatives are against all of them, I disagree. Thoughts?

All birth control is proactive...

my "thoughts" are that your continued obfuscation of the issue by denying that an IUD and Morning After pill are not proactive is ludicrous. As I clearly stated...anyone that thinks a fertilized egg is a person needs to seek professional help...and yes, I think most conservatives hate birth control of any kind.

Reactive Defined

Reactive is when the action is taken after an event occurs... In this case after sexual intercourse.

Most Conservatives I know actively use birth control, so I think you are incorrect. Even Catholic families are much smaller today than in the past, so either they are lucky, abstaining or using birth control.

Proactive Defined

Proactive is when the action is taken before an event occurs... In this case before a potential birth.

That's why it's called "birth control" rather than "sexual intercourse control".

Interesting

I'll have to try to put my motorcycle helmet on after the crash. Though I am thinking that would be a bit late, irresponsible and reactive.

I think people like myself prefer proactive responsible birth control that prevents the fertilization of the human ovum.

Or maybe you consider 20 week abortions to be just another form of proactive birth control that should be covered under health plans and medicaid?

Though I think parents should have the right to discontinue the life growing within the Mother up to ~12 weeks, I sure don't think others should be forced to pay for the drug/procedure against their will.

More obfuscation...

you leap from a discussion about IUD and morning after pills to 20 week abortions. A fertilized egg is not a child anymore than the two eggs I cracked into a pan on Sunday are chickens.

What event?

Birth control prevents birth...whether it stops fertilization or destroys a fertilized egg...same end. No birth. You're the one hung up on semantics. By the way...how do you know that most conservatives you know actively use birth control...did it come up during lunch?

Birds of a Feather

The majority of my friends are moderate to conservative. And yes we talk.

Sounds like a fun conversation

"hey...just curious, but what kind of birth control do you use?" yup...that comes up all of the time when I hang with my friends. Thanks for the chuckle.