Hospitals, Policy

Supreme Court: Only small, privately held companies can avoid ACA birth control rule

UPDATE: The Supreme Court’s latest ruling about part of the Affordable Care Act is not […]

UPDATE: The Supreme Court’s latest ruling about part of the Affordable Care Act is not a soundbite decision with clear implications for each side of the debate. In the Hobby Lobby case about the ACA’s birth control mandate, the justices in the majority were very precise in describing how this ruling applies. It almost seems like they don’t want this to be a precedent because of the ruling’s limited scope. The decision that employers do not have to cover birth control in insurance policies for employees is applied ONLY to birth control and ONLY to privately held companies with specific religious beliefs.

The justices said that the ruling does not apply in these instances:

  • Hiring practices in regard to race
  • Large publicly held companies
  • Non-profit companies
  • Requirement to pay income or Social Security taxes

Justice Samuel Alito also said that the justices were not ruling on the First Amendment claims that Hobby Lobby included in its case:

For purists, it is important to note that this case was decided purely on statutory grounds (Religious Freedom Restoration Act) and Alito closes the opinion of the Court by noting that they are not reaching the First Amendment claims raised by Hobby Lobby.

A reader on the SCOTUS Blog’s live coverage of today’s ruling asked if the ACA could still be law if the birth control requirement was repealed. The reply was:

There’s no suggestion that today’s decision invalidates the ACA in any respect other than requiring an exemption for employers like these.

Tom Goldstein of SCOTUS Blog suggests that the Obama administration will provide for the government to pay for the birth control coverage, avoiding a substantial gap in coverage.

The majority ruling was 49 pages. Justice Ginsberg wrote a 35-page dissent. Justice Breyer and Justice Kagan each filed a dissenting opinion as well.

So, once again, women’s healthcare is singled out for special treatment. Hobby Lobby can hire women to work in their craft supply stores but they don’t have to pay them the same wages as men, nor do they have to provide basic healthcare for them.

The way proponents have sold this case is to say it’s only about birth control. Any guesses about how long it takes for the “we don’t have to cover that” excuse extends to fertility treatments or other treatments that religious people object to?

UPDATE: Hobby Lobby wins:

The Court says that the government has failed to show that the mandate is the least restrictive means of advancing its interest in guaranteeing cost-free access to birth control.

To be clear: the Court holds that corporations (including for-profit corporations) are “persons” for purposes of Religious Freedom Restoration Act of 1993. The additional question was whether corporations can have a religious “belief” within the meaning of RFRA. On that question, the Court limits its holding to closely held corporations, leaving for another day whether larger, publicly traded corporations have religious beliefs.

The first reactions from other news sources overread Hobby Lobby significantly. The Court makes clear that the government can provide coverage to the female employees. And it strongly suggests it would reject broad religious claims to, for example, discriminate against gay employees.

We have no occasion in these cases to consider RFRA’s applicability to publicly traded corporations. The companies in the cases before us are closely held corporations each owned and controlled by members of a single family and no one has disputed the sincerity of their religious beliefs.

The majority decision sidesteps the question of whether the Govt has a compelling interest in providing women FDA-approved contraception at no cost — it assumes the Govt has this interest, but holds that the narrow tailoring requirement of RFRA is nonetheless not satisfied.

Justice Ginsberg has a 19-page dissent. The ruling broke along the conservative/liberal lines of the Court, Amy Howe reports on SCOTUS Blog:

This broke down as what we think of as “ideological” lines: Justice Alito wrote for a majority that included the Chief Justice and Justices Scalia, Kennedy, and Thomas. Justices Ginsburg, Sotomayor, Breyer, and Kagan dissented.

Read the opinion here (PDF).

Last week the potential presence of health data on a cell phone persuaded the Supreme Court justices that the device deserves privacy protections.
Today the justices will rule on the Hobby Lobby case and decided whether corporations who don’t believe in birth control have to cover it in insurance policies for employees.

The other remaining case in the Supreme Court docket is related to healthcare as well. Home healthcare workers in Illinois sued over being forced to pay union dues, even though some of them were not members.

Track the release of the rulings at SCOTUS Blog.

The decisions will be announced this morning, so stay tuned for the results.

Veronica Combs

Veronica is an independent journalist and communications strategist. For more than 10 years, she has covered health and healthcare with a focus on innovation and patient engagement. Most recently she managed strategic partnerships and communications for AIR Louisville, a digital health project focused on asthma. The team recruited 7 employer partners, enrolled 1,100 participants and collected more than 250,000 data points about rescue inhaler use. Veronica has worked for startups for almost 20 years doing everything from launching blogs, newsletters and patient communities to recruiting speakers, moderating panel conversations and developing new products. You can reach her on Twitter @vmcombs.

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