CREDIT: AP Photo/Ed Andrieski
On Monday, the Supreme Court ruled that closely held corporations can refuse to offer contraceptive coverage to their workers on religious grounds, siding with two businesses who say they’re morally opposed to certain types of birth control. The highly anticipated case has been dominating the national headlines for months. But now that the decision is here, how does it affect you?
If you’re one of the estimated 14,000 individuals who work at Hobby Lobby or Conestoga Wood — the companies who represented the two plaintiffs in the case — then you’re most immediately affected by Monday’s decision. Your employers no longer have to cover several types of birth control that they’re opposed to.
Both companies object to covering emergency contraception, which they falsely claim is a type of abortion despite all scientific evidence to the contrary. Hobby Lobby’s owners also take issue with two forms of intrauterine devices (IUDs), long lasting forms of birth control inserted in the uterus, for the same unscientific reason. So the workers employed by those businesses won’t be able to use their insurance coverage for those types of birth control anymore. They’ll presumably be able to continue using their health plans for other methods, like hormonal birth control pills, that their bosses don’t have a problem with.
But even if you don’t work at Hobby Lobby or Conestoga Wood, there’s a chance that your birth control coverage may be put into question. More than 70 other companies also sued for the right to stop following Obamacare’s contraceptive provision. According to the National Women’s Law Center, 48 of those cases are still pending. Now that the Court has sided with Hobby Lobby, it will be much easier for some of those companies to win their suits and opt out of covering certain types of contraception.
Monday’s ruling also leaves the door open for other companies to stop covering some types of birth control in the future, even if they aren’t one of the businesses that already filed a suit against the government. Although the Court’s decision doesn’t apply to publicly traded companies — and the justices didn’t wade into the question of whether those types of companies can claim religious beliefs — that doesn’t mean it’s targeted at a narrow slice of employers in this country. Closely held corporations, which are defined as companies with limited numbers of shareholders, comprise more than 90 percent of the organizations in the United States and are responsible for about 52 percent of all private employment. For instance, Koch Industries and Walmart Inc. are both closely held because they’re controlled by families.
Fortunately, women who want affordable contraception aren’t entirely out of luck. The vast majority of women with private insurance are already working at companies that comply with Obamacare’s birth control mandate. And even the people working at closely held corporations owned by people who oppose birth control may have options. The Obama administration will likely ensure they have another avenue to get the coverage they need.
As Justice Anthony Kennedy noted in his concurrence, the federal government has already established “an existing, recognized, workable, and already-implemented framework to provide coverage” for contraceptive services. Kennedy is referring to the administration’s existing exemption for religiously-affiliated nonprofits (like Catholic colleges or charities) that refuse to provide birth control to their employees. In those cases, the administration permits the employer to refuse coverage, but requires “insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it.”
“Adding new regulations that add closely held corporations along with the nonprofits would be the easiest fix,” Alina Salganicoff, the Vice President and Director of Women’s Health Policy at the Kaiser Family Foundation, told ThinkProgress. “There are still employers, however, who are suing that this accommodation for nonprofits is not adequate.”
Washington & Lee University law professor Timothy Jost added that the court’s ruling “invites” the government “to extend the alternative they have already extended to religious organizations to closely held for-profits and they could do this through an interim final regulation on very short notice, possibly even through guidance.”
There is at least one bright spot for Hobby Lobby opponents, who were concerned about a slippery slope in which employers could deny access to any other type of coverage they oppose. Monday’s decision sets a problematic precedent for future religious liberty claims, but the justices did specify that the ruling can’t be immediately extrapolated to apply to other types of health services. For instance, closely held companies cannot refuse coverage for blood transfusions or vaccinations based on their religious beliefs.
“This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice,” the opinion states.
Although the reproductive rights community is reeling from the implications of the Hobby Lobby decision, the legal fights may not be over. There’s been some speculation that Hobby Lobby employees may be able file a Civil Rights Act Title VII complaint, on the grounds that the company is treating female employees differently than male employees by refusing to cover gender-specific health services.
The White House said on Monday that it is still assessing the implications of the Hobby Lobby decision, but promised to “work with Congress to make sure any women affected by this decision will still have the same coverage of vital health services.” Press Secretary Josh Earnest promised that the administration will “consider the range of options available to the president” to ensure that all women have access to contraception.