Why Employers Can Now Immediately Deny You All Birth Control Coverage

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Kristin Hughs, right, announces to supporters the Supreme Court's decision on the Hobby Lobby case in Washington, Monday, June 30, 2014. The Supreme Court says corporations can hold religious objections that allow them to opt out of the new health law requirement that they cover contraceptives for women.

Image: Pablo Martinez Monsivais/Associated Press

By Rebecca Ruiz2014-07-01 14:06:38 UTC

Experts say that private for-profit companies might now decline to offer birth control as part of their insurance coverage, after the Supreme Court ruled on Monday to protect the religious liberties of corporations.

The decision was a victory for Hobby Lobby, the arts-and-crafts chain that objected to covering four types of contraception on religious grounds. The business, which operates more than 500 stores nationwide, had until then been required by the Affordable Care Act to provide no-cost coverage of 20 different types of contraception approved by the Food and Drug Administration. If the company refused, it would have been charged a daily fine of up to $1.3 million.

The religious owners of Hobby Lobby, David and Barbara Green, said they could not in good conscience pay for any of their 16,000 full-time employees to receive two types of emergency contraception or two types of intrauterine devices (IUD), which they considered tantamount to abortion.

The Supreme Court, which did not evaluate the scientific validity of the Greens’ claims, narrowly sided with the couple and their fellow plaintiffs in a 5-4 decision.

See also: 7 Ways Companies Are Using the Government's Open Data

Though the case only considered the objections of a few companies over four types of birth control, experts say other employers with religious objections to the contraception mandate could use the ruling to immediately decline coverage of all approved birth control methods, which include diaphragms, hormone pills and injections, and sterilization.

“The five justices are basically saying the personal views of a CEO trump the rights of all the women who work for him,” said President of Planned Parenthood Federation of America Cecile Richards of the court’s decision. The reproductive health federation vocally opposes the decision. “It’s a very dangerous precedent and quite open-ended.”

Michael A. Helfand, associate professor of law at Pepperdine University, told Mashable that companies hoping to claim an exemption need only argue that they are “closely held” and that their opposition is based on religious belief. But the term “closely held” can be misleading; the Supreme Court described it as owned and controlled by members of a single family. As Justice Ruth Bader Ginsburg points out in a scathing dissent, however, this distinction belongs not only to smaller firms, but also to behemoth-sized companies, such as candy maker Mars, Inc. and food producer Cargill, Inc.

Emily Hardman, a spokesperson for the Beckett Fund for Religious Liberty, a Washington, D.C., public interest law firm that argued the Hobby Lobby case, told Mashable the company will not deny its employees coverage for the 16 other types of FDA-approved birth control.

“The Greens have no moral objections to traditional forms of contraception and will continue to provide that in their generous health care package,” Hardman wrote in an email.

Margot Riphagen of New Orleans, La., wears a birth control pills costume as she protests in front of the Supreme Court in Washington, Tuesday, March 25, 2014, as the court heard oral arguments in the challenges of President Barack Obama's health care law requirement that businesses provide their female employees with health insurance that includes access to contraceptives.

Image: Charles Dharapak/Associated Press

But other employers feel differently. More than 40 private companies have filed suits protesting the contraception mandate, including some that don’t want to provide any type of birth control at all. It’s not clear how many closely held U.S. companies could claim a religious exemption, but according to Mother Jones , among the firms that have filed suit are construction, law, automotive and medical device businesses.

Julianna Gonen, director of government relations for the Washington, D.C.-based nonprofit Center for Reproductive Rights, which supports birth control coverage, said that these plaintiffs would likely be “encouraged” by the ruling, because the Supreme Court didn’t clearly state that it applies only to the four types of birth control at issue.

“It’s hard to know why they drew the line here today, and why it wouldn’t move,” she said.

Helfand said the Court didn’t explain how the existing cases might be resolved. One option, he said, was that a “company could just assume they fall under the [Supreme Court] decision, and if they get it wrong, there could be consequences down the road.”

Though the Supreme Court allowed private companies the right to decline coverage, it did not intend to strip female employees of the federally guaranteed right to access no-cost birth control. Instead, Justice Samuel Alito, who authored the majority opinion, suggested the federal government find another way to provide the service to women whose employers won’t offer the benefit. This could be through the same exemption designed for nonprofit religious organizations, which rely on their insurance companies to pay for the cost of birth control.

“[The Department of Health and Human Services] has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections,” Alito wrote. “We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.”

Women’s health advocates told Mashable this was not an acceptable alternative. Richards, of Planned Parenthood, said it leaves women who are trying to obtain birth control recommended by their doctors to “fend for themselves.” She said her organization is working with members of Congress to remedy the gap in coverage, and added, “Why should the women have the burden?”

Justice Ginsburg made a similar argument in her dissent, noting that IUDs are significantly more effective – and more expensive – than other forms of birth control. These implantable devices, which remain effective for years, are “nearly equivalent to a month's full-time pay for workers earning the minimum wage,” Ginsburg wrote. She cited studies showing that almost one-third of women would change their birth control method if cost was not a factor, and that only a quarter of women who want an IUD have one inserted after learning the price.

Ginsburg predicted in her dissent that the court’s ruling would have far-reaching implications.

“And where is the stopping point to the ‘let the government pay’ alternative?” she wrote. “Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according equal pay to women for substantially similar work?”

“Justice Ginsburg had a long parade of horribles,” Helfand said, “and the majority opinion doesn’t tell us about how those cases would turn out.” Indeed, Justice Anthony Kennedy, who joined the majority opinion, wrote that the “Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.”

While that remains to be seen, Helfand said the case raised profound questions about protecting fundamental rights.

“When it’s the case that the health needs of women are pitted against religious liberty, these are extremely tragic choices the law needs to make,” he said. “The idea we have to chose is deeply unfortunate.”

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