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?


Ashok V. Daftary, MD, FACP. said...

I will dispense with the moral issues surrounding the Hobby Lobby decision.
Let us for a moment address the financial consequences. Does anyone know the cost of health interventions? To reduce the argument to real dollar terms the average cost of a cell phone bill varies from $120 -150/ month. I am sure there are more users of cell phones than contraceptives. Planned Parenthood estimates the cost of oral contraceptives ( the most expensive ) contraceptive as between $15 to 50 / month.
When one is responsible for cost then one may make reasonable healthcare decisions.
Enough of impassioned posts, I care for many elderly who forego food for healthcare. No one even the ACP addresses their concerns, they are not political fodder for the next election.
The ACP must be reminded of Marie Antoinette, when a request for bread was made she offered cake,
I wonder what happened to her head

Ashok V. Daftary, MD, FACP. said...

I have never visited a Hobby Lobby store and do not oppose the use of contraception. ACP states " We believe that this decision will make it more difficult for women to access affordable contraceptives"
My question, really?
In support of my argument I will use the mobile phone analogy.
The average monthly mobile phone bill $120-150/ month. Mobile phone use over 90% of the US population ( Pew Research 2013) there are 103 mobile phones for every 100 Americans ( Wireless Quick Facts 2014). These numbers would be greater if individuals over 65 ( most have Medicare and are infertile) and those with incomes less than $30,000/year (qualify for Medicaid) were excluded.
The cost of oral contraceptives is $9-$50 per month.
Mobile phones are a privilege and not a right yet I assume most contraceptive wanting individuals have one. They assume the cost of the device and use while they demand coverage for contraception considering it a right not a privilege.
Unfortunately, when every Medical intervention is a right the privilege of paying for these "rights" descends often on non users ,those with moral objections and the payers of healthcare (employers) who see these rights bankrupt their business and the economy.
I practice geriatric medicine and see my patients' forego food for care.
The ACP would do better to recognize this and other neglected patient groups, it could text the proponents of the righteous I play you pay users of health care to "choose wisely" in preference to playing second fiddle on a political band wagon

Harrison said...

I agree with Dr. Daftary that the ACP's statement of concern about patient access to health care in the form of contraception may be alarmist and mis-spent energy.

But I do have concerns about the Supreme Court's decision in much the same way that I have concerns about the Supreme Court's Roe vs Wade Decision.
The Supreme Court is clearly unable to find in the constitution anything that allows them to rule that women have equal rights and status in our society.

Roe vs Wade was a positive outcome for women. Yes. It was. But the majority opinion in the case was all about privacy concerns and the rights of doctors to make decisions with their patients.
It should have been a case of equal rights for women.
Women should have control over their bodies, and if our constitution doesn't say that then we have a problem.

The Hobby Lobby decision also was all about the rights of the people who make up a closely held corporation to be able to extend their religious freedoms into the operations of their corporation.
I guess we can over look the fact that the corporation in question and the very wealthy families behind it have invested directly into the pharmaceutical companies that research and develop and manufacture and sell contraceptives.
That would have been hard to square with the difficulty they wish to impose on their empoyees.

But...the real disappointment is that the Supreme Court could not find an equal protection under the law for women issue here.

That is truly sad.

The ACP as an organization could make such a statement but it really isn't a direct statement about the welfare of our patients.

The ACP should be outraged if there becomes evidence that this does harm patient access to health care.
The ACP should also be outraged if the buffer zone decision that the court made the week before results in harassment of patients in clinics that offer pregnancy termination services.

And the ACP should make statements opposing the harm that states are imposing on patients around the country as access to pregnancy termination services are severely limited. The harm is especially a hardship for the very poor, who are often courageous to even seek out counseling about options for their pregnancies.


ryanjo said...

Is the sky falling again? Never surprising to see a post on the ACP Advocate Blog lamenting another hole in the leaky ship called Obamacare.

The fact is, Obama could fix this "contraceptive access crisis" immediately. But he won't -- he needs to use this issue for fundraising and energizing his base. Especially since his administration continues to reel from failures of leadership on immigration, the laggard economy, Iraq, Ukraine, the Bergdahl trade, drone strikes -- well, almost every aspect of his Presidency.

Did anyone actually read the decision? Justice Anthony Kennedy recognized Obama’s options as a rationale for allowing the for-profit companies to opt out of the contraception mandate in the Affordable Care Act. "In other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it.'"

Never a bad thing IMHO, when the insurance companies have to eat the costs. And much less damaging to the First Amendment.

PCP said...

It seems despite Mr Doherty's efforts to give the impression that the ACP's positions are middle of the road and non partisan, it is clear that ACP for whatever reason has evolved into a leftist idea supporting organization. Thus their wading into this politically sensitive decision with little relevance to most geriatric practice internists does not surprise me one bit.
Actions, Mr Doherty speak a lot louder than words and every step of the way, you and the ACP lean left. Yet you like to profess neutrality. Saying something repeatedly doesn't make it true.

BDoherty said...

Dear RyanJo,

Yes, I have read the Hobby Lobby decision--every page of it. And it is clear that the decision will allow for profit companies to seek exemptions from any coverage mandate that they object to, on the grounds that they violate the owners' religious beliefs. And right after the decision was issued, the Supreme Court majority ruled in another case, involving a Christian College that objected to the administration's compromise of having them submit a form seeking to be exempted from providing contraceptive coverage directly, Under the compromise, the insurance companies pay for the coverage directly with no company funds involved--yet this college argues that even that was an excessive burden on their religious beliefs. In doing so the court disavowed the very same alternative that Justice Alito, who wrote the majority opinion for Hobby Lobby, said would represent less burdensome impact on Hobby Lobby's owners' religious beliefs. The three female justices on the court issued a blistering dissent, suggesting (rightly) that this called into question whether people can even take the current Supreme Court at its word.

PCP, why should general internists care about this case? Because the Supreme Court decision will inevitably lead to for profit companies seeking to exclude coverage for vaccinations, blood transfusions, and many other treatments that the owners will contend violate their religious beliefs. It is not crying wolf or saying the sky is falling to suggest that this could have a catastrophic impact on public health. There already are enough anti-vaccine, anti-science militants out there--do internists really want owners who object to vaccines being able to opt out using the rationale in Hobby Lobby? Where does it stop?

During the Jim Crow era, there were people who justified their support for segregation as being based on their religious beliefs. The country rightly repudiated such views--and no company in America can legally discriminate based on race because of the owner's religious views.

Under Hobby Lobby, what is to stop companies from not providing coverage for HIV or AIDs treatment because it violates the owners' religious views, resulting in discrimination against people who have these conditions? From companies refusing to provide maternity benefits for unwed mothers? Where does it stop?

PCP said...

Ah but isn't it on a similar technicality that the affordable care act and its individual mandate was withheld by the supreme court previously?
This is a faulty law and its effects are just starting to be felt. Interestingly when the Q1 GDP revisions came and all were shocked at the -2.9% number, a deeper look at the numbers show that 2/3 of the dislocation was accounted for by the health care economy. So far what is clear is that, patient care is no better, but the mandates and paperwork and regulations are certainly more. Health care is no more affordable to the public and insurance, hospital and other corporate healthcare stocks are hitting all time highs, while solo practices wither. The promise of ACOs and Advanced medical homes is being throttled by the very law that was supposed to usher in those valuable options.
Instead the healthcare workforce is increasingly demoralized and increasing keeping one weary eye on retirement or some other form of escape from this system. That Bob is where your advocacy and the Acp policies has bought us.

Harrison said...

Although I am guilty of not taking the time to read Justice Alito's opinion, I am struck by two things within the Hobby Lobby decision that seem like they should have been important.
First, money for employee health insurance is not the employer's money. It is money not paid as cash to employees and instead given as a benefit. Why should the belief's or opinions of the employer, whether an individual or a corporation, make any difference at all in determining what the money is used for?
And two, why should a company that claims a moral problem with directing money for something for an employee benefit be allowed to direct their own money into investments that support the same moral problem. More simply, why should Hobby Lobby be allowed to invest in pharmaceutical companies that profit from contraceptive meds and devices, but then refuse it as a service to employees.

If it is a religious freedom that they claim shouldn't they have to be internally consistent.
And if they are not internally consistent then shouldn't the Court have found them to be without sufficient standing in the case to bring it in front of the court?

That's what I don't get.

The very brave court of Chief Justice John Marshall stood up in Marbury v Madison and said that the court did not have jurisdiction under the constitution. And that non decision was one of the most important decisions the court ever made.

Now we get ideology from what should be an institution above the political fray.



Unknown said...

Jim Crow laws were laws made by the legislature that prevented businesses from doing business in the most efficient way for the largest amount of customers. Obamacare looks more like Jim Crow than family owned corporations.

Unknown said...

No one ever has coverage of contraception, or anything else, "without cost sharing." There is no free lunch. No insurers will ever "eat the cost" of contraception, although they may pretend to for political reasons. Economic naïveté among medical experts never ceases to amaze me. Obamacare iconsists of thousands of examples of the seen and the unseen, to use Bastiat's phrase. The seen, the contraception mandate, is a cheap way of favoring a key cohort of Democratic voters, young single women, the vast majority of whom could easily afford to pay out of pocket for OCPs. The unseen is the group of nursing home patients (ironically, predominantly women) who would have benefitted from the CLASS act had it not been deemed "unaffordable." Translation: not enough of the elderly vote the correct way. My definition of "unaffordable" in government-controlled health care is any service that is not means-tested, whether under Obamcare or Medicare
The most equitable system would cover catastrophic care while leaving most things to the free market. That way, we don't have these endless arguments about what should be covered, or have a system that will bankrupt us individually or collectively. An HSA would be ideal for most Americans, and I for one would be glad to pay higher taxes for expanded Medicaid, in return for preserving some freedom of choice in my own health care.

Mark Hodges, MD said...

The ACP needs to leave this issue alone. The decision to allow businesses not to cover OCP's and emergency contraceptives is not going to limit a woman's access to healthcare. This is absurd. Many OCP's are generic and can be obtained for under $30/month. I suspect most people can afford a dollar a day for a medication (as opposed to $5/day for cigarettes). Why does the ACP take offense that a Christian organization is standing up for its' beliefs? If this were another type of cause, such as a gay rights issue, would the ACP have an opinion? I doubt it. It is easy to offend Christians, but don't think about offending others. I, as a Christian, will consider this opinion when my dues need paid next year.

Tom said...

The striking thing about reaction to the SCOTUS decision is the neglect of jurisprudence in favor of policy arguments. The Hobby Lobby decision follows the religious freedom statute. If that outcome is objectionable, the proper focus for advocacy is the Congress, not SCOTUS. We want Congress to make and modify laws, not the Court.