The ACP Advocate Blog
by Bob Doherty
Monday, June 30, 2014
The Supreme Court’s Hobby Lobby Decision: Bad for women, bad for everyone
Today’s Supreme Court ruling in the “Hobby Lobby” case allows “closely held” for-profit companies to opt-out of the Affordable Care Act’s contraception mandate if it violates their religious beliefs. The court went to great lengths to characterize the decision as being narrow in scope—initially applying only to coverage of contraception—but it may have a much broader impact, encouraging other for-profit employers to challenge the ACA’s coverage requirements.
In its 5-4 ruling on behalf of Hobby Lobby, the Supreme Court determined that closely held (family owned) small companies had religious freedom rights under a 1993 statute, the Religious Freedom Restoration Act (RFRA). This is the first time that the court has ruled that some for-profit companies are covered by the RFRA, rather than just individual persons. The Religious Freedom Restoration Act (RFRA) allows the federal government to impose requirements that violate a person’s religious beliefs only if the government can (1) demonstrate that it has a “compelling interest” in the requirement and (2) show that its compelling interest is being achieved in the “least restrictive” way possible. The court “assumed” that the government had a “compelling interest” in requiring coverage of contraceptives but faulted the government for not achieving this interest in the least restrictive way possible as required by RFRA. (The Washington Post has a good, plain English explanation of the three components of the ruling—that for-profit companies are potentially covered by the RFRA, that, “the Affordable Care Act substantially burdens these particular claimants’ practice of religion” and that, “Applying the ACA’s requirement is not the least restrictive means of serving a compelling government interest.”
In its written opinion, the Supreme Court majority went to great lengths to characterize the decision of being narrow in scope, applying only to the ACA’s contraception mandate, not other benefit requirements or anti-discrimination laws:
“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.”
And only to “closely held,” family owned companies:
“These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to whom HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s applicability to such companies. 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.”
Yet the court’s decision clearly opens the door for other for-profit “closely held” companies to challenge the ACA’s coverage requirement on the basis that they conflict with their owners’ religious beliefs. How many could potentially seek a religious exemption from the coverage mandates? Well, such “closely held” companies are estimated to represent 90% of all businesses, employing 52% of the American workforce. Most of them, of course, are not likely to seek a religious exemption from specific coverage requirements, and not all of them will prevail in court if they do. But some will, perhaps for ideological reasons masquerading as a religious belief.
So the Supreme Court decision isn’t just about women’s access to contraception, which would be reason enough to be concerned, (It is astounding to me that in 2014, women’s access to contraception is even considered to be a subject of debate). It is about whether employers that have religious objections to the ACA’s coverage mandates will be allowed to pick and choose which services to cover—excluding contraception today, maybe seeking to exclude vaccines or blood transfusions tomorrow, notwithstanding the Supreme Court’s assurances that the current decision does not “necessarily” apply to the other coverage requirements.
Today, the American College of Physicians issued a statement saying it was “deeply concerned” about the potential impact of the Supreme Court’s decision on public and individual health:
“We are concerned that allowing employers to carve-out exemptions to the ACA’s requirements that health insurance plans cover evidence-based preventive services without cost-sharing, including but not necessarily limited to contraception, will create substantial barriers to patients receiving appropriate medical care as recommended by their physicians.
We acknowledge that the Supreme Court has stated that, ‘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.’ Allowing for-profit employers to exclude coverage for contraception is itself deeply concerning because of the demonstrated adverse impact it will have on women’s health. And, although we certainly hope that the Supreme Court’s decision does not result in for-profit employers obtaining exemptions for vaccinations and other evidence-based benefits, the ruling clearly does not preclude for-profit employers from challenging such mandates, or the courts from granting further coverage exemptions. Rather, it seems likely that the Supreme Court’s decision will open the door for more for-profit employers to seek exemptions from the ACA’s other insurance-coverage mandates on the basis that they violate their owners’ beliefs.”
The result of the Supreme Court’s ruling may be a “Swiss Cheese” system where individual companies will be able to choose what they want to cover, based on the religious beliefs of their owners, rather than the ACA’s promise of guaranteed levels of coverage for everyone, regardless of where you work.
Today’s question: What is your reaction to the Supreme Court’s Hobby Lobby decision?
About the Author
Bob Doherty is Senior Vice President, American College of Physicians Government Affairs and Public Policy; Author of the ACP Advocate Blog
Email Bob Doherty: TheACPAdvocateblog@acponline.org.Follow @BobDohertyACP
- No, not everyone agrees with you (or me)
- Being Part of the Solution (continued)
- Are you part of the problem, or part of the soluti...
- Yes, times are tough. But don’t compare doctors t...
- No, it isn’t anti-gun for physicians to be pro-gun...
- A Dumb Data Dump
- A Banner Day for U.S. Healthcare
- A (Not) Funny Thing Happened on the Way to the Quo...
- What Can We Do about a Non-compliant Congress?
- We Don’t Need No Stinkin’ Patches
The Wall Street Journal's blog on health and the business of health.
Health Affairs Magazine Blog
The Policy Journal of the Health Sphere.
The Health Care Blog
Everything you always wanted to know about the Health Care system. But were afraid to ask.
Vignettes and commentaries on the medical profession.
The New Health Dialogue Blog
From the New America Foundation.
DB's Medical Rants
Contemplating medicine and the health care system
Notes From The Road
Bloggers post from medical meetings, press conferences, and policy gatherings from the U.S. and around the world, providing readers with a tasty analysis of the buzz, the people, and the stories that don't get told.
A blog dedicated to medical education, news, and policy as well as career advising.
Disease Management Care Blog
An ongoing resource for information, insights, peer-review literature and musings from the world of disease management, the medical home, the chronic care model, the patient centered medical home, informatics, pay for performance, primary care, chronic illness and health insurance.
Medical Professionalism Blog
The Medical Professionalism Blog was created by the ABIM Foundation to stimulate conversation and highlight best practices related to professionalism in medicine.