The Supreme Court’s decision this week in the Hobby Lobby case is a blow to the hard-fought campaign to ensure that women have affordable health insurance coverage for contraception. The court, in a 5-4 ruling, said that family-run corporations like the crafts chain store Hobby Lobby can refuse to provide contraceptive coverage to their employees if the owners say contraception violates their religious beliefs.
Women’s health advocates are concerned that the decision could begin to undermine valuable gains for women’s health and economic well-being that we’ve started to see as a result of the Affordable Care Act’s Women’s Preventive Services provisions. Last year, the share of women with no out-of-pocket costs for the types of contraception covered by the law increased to 56 percent from 14 percent only one year earlier. The contraceptive coverage mandate saved women an estimated $483 million in out-of-pocket spending last year, according to the IMS Institute for Healthcare Informatics.
Prior to the Hobby Lobby decision, the Obama administration already had exempted purely-religious organizations, such as churches and seminaries, from complying with the contraceptive mandate. In addition, the administration had fashioned an accommodation for religiously-affiliated non-profits, such as Catholic hospitals and nursing homes, that allows them to shift the burden of providing contraceptive coverage to their insurance companies or third-party health plan administrators.
The court’s ruling carves out an exception to the contraceptive coverage mandate for another type of employer (so-called “closely-held corporations” in which more than half the stock is held by five or fewer people), when the owners of the company (such as the conservative Christians who own Hobby Lobby) have religious objections to contraception. By some estimates, as many as 90 percent of all corporations are closely-held entities, and they employ about half of American workers. Hobby Lobby runs more than 600 stores across the country, with 13,000 employees.
Justice Samuel Alito, who authored the majority opinion by five male judges in the Hobby Lobby case, suggested that the employees of corporations like Hobby Lobby could still get contraceptive coverage if the government granted those companies the kind of accommodation already in place for religiously-affiliated employers, or if the government simply paid for their contraception. However, the accommodation is being challenged in separate lawsuits by religious entities. Moreover, Justice Ruth Bader Ginsburg, who authored the dissent that was joined by the other two female justices, wondered: “Where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines or paying the minimum wage […] or according women equal pay for substantially similar work […]?”
The Hobby Lobby decision was the first time that corporations were granted legal protections under the federal Religious Freedom Restoration Act for the religious beliefs of their owners, a step that was very troubling to Ginsburg and the dissenters. “The exemption for these employers from the requirement to provide contraceptive coverage would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure,” Ginsburg wrote.
Fortunately for women in New York State, the decision and the federal RFRA does not apply to state contraceptive coverage laws, such as the Women’s Health and Wellness Act in New York. The Women’s Health and Wellness Act requires employers to cover contraception, as well as other important women’s health services. This state law was upheld by the state’s highest court, the Court of Appeals, which rejected a challenge by religious groups in our state.