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

WASHINGTON — The Hobby Lobby decision opens the door to new regulations from Congress or the administration, though the latter approach is much more likely.

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.
REUTERS/Jonathan Ernst
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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.”

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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.”

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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.”