Birth control coverage in insurance is optional for more than 90 percent of businesses in the country according to the Supreme Court’s latest decision.
In the case of Burwell v. Hobby Lobby Stores Inc., the crafts retailer Hobby Lobby argued that it shouldn’t have to provide birth control in its insurance plan for employees, which the Affordable Care Act [ACA] mandates.
The ACA allows businesses to not go along with the mandate, so long as they pay a fine, but Hobby Lobby (as well as furniture manufacturer Conestoga, who joined onto Hobby Lobby’s lawsuit) chose to argue against the mandate anyway.
The nation’s highest court agreed with Hobby Lobby in a 5-4 ruling June 30 that “closely held” businesses do not have to provide birth control in their insurance plans. A “closely held” business is defined by the IRS as a publically traded business that “has more than 50 percent of the value of its outstanding stock owned (directly or indirectly) by five or fewer individuals at any time during the last half of the tax year.”
The scope of this decision is not so narrow, as more than 90 percent of all businesses in the United States are “closely held.”
Justice Samuel Alito, writing for the majority, based his decision on the Religious Freedom Restoration Act of 1993 [RFRA]. The RFRA bars Congress from substantially burdening free exercise of religion, or that any burden must be justified by a “compelling government interest.” It can certainly be said that fewer unwanted pregnancies and a healthier population through access to affordable birth control is in the government’s interest, but the five justices did not see it that way.
This is the first time the Court has ruled that for-profit companies can make claims under the RFRA.
“No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others — here, the very persons the contraceptive coverage requirement was designed to protect,” said Justice Ruth Bader Ginsberg in her dissenting opinion.
Hobby Lobby’s argument is that it’s a family owned Christian business and birth control violates its religious beliefs because, in the opinion of the owners of Hobby Lobby, taking birth control, including an inter-uterine device, is the same as having an abortion.
The Guttmacher Institute, an independent reproductive health research center, said “that assertion […] contradicts what science says about how pregnancies are established and how contraceptives work.” The Supreme Court was also sent an amicus brief by the American College of Obstetricians and Gynecologists, explaining to the court that the contraceptives explicitly laid out in the ACA do not cause abortion.
The court chose to ignore the science and said, for the purpose for this case, what the owners of Hobby Lobby believe trumps what is actually true.
Hobby Lobby also covers vasectomies and condoms in its insurance plan with no objections.
In her dissent, Ginsberg wrote “the Court, I fear, has ventured into a minefield.” While this ruling only pertains to contraception as it relates to the ACA, the door is opened to other businesses saying they cannot be forced to provide other medications and procedures in their insurance because of religious objections.
Ginsberg laid out similar questions in her decision, asking whether a Scientologist-owned business could refuse to cover antidepressants, a business owned by Jews, Muslims or Hindus could refuse to cover anesthesia and gelatin-coated pills derived from pigs or a Christian Scientist-owned business could refuse to cover vaccines.
The ability of women to access affordable contraception remains a pressing issue in the United States, as the Guttmacher Institute’s research finds that “almost one-third of American women report that they would change their contraceptive method if cost were not an issue.”
Like when religious organizations such as Catholic universities and hospitals argued they should not have to provide contraception in their insurance, the Court said Hobby Lobby and other for-profit business employees can apply for accommodation to get their birth control subsidized directly by the federal government.
However, this accommodation is also facing legal challenges by religious organizations, with the D.C. Circuit Court still hearing oral arguments.
The Supreme Court’s decision followed typical ideological lines, with the court’s five justices appointed by Republican presidents ruling in favor of Hobby Lobby and the court’s four justices appointed by Democratic presidents ruling against.