The Supreme Court Hobby Lobby decision is astounding in its breadth. Not only did it deliver a killing blow to the Obama administration’s promise of universal contraceptive coverage, but as Rep Nancy Pelosi points out, “SCOTUS took an outrageous step against women’s rights, setting a dangerous precedent that permits corporations to choose which laws to obey. Allowing CEOs to limit the medical procedures available to employees is a gross violation of workers’ religious rights.”
While the justices in the majority insist that this is a limited ruling, the day after the decision was delivered, the court has recommended re-evaluation of a number of diverse cases already decided by lower courts. Furthermore, a flood of new cases has begun to be filed on everything from contraception to the right to discriminate against homosexuals should that lifestyle be in conflict with employers religious beliefs.
The Hobby Lobby decision holds that closely held corporations may be regarded as individuals with the religious protections usually afforded to humans, not to legal entities. So, what is a “closely held” corporation? The IRS defines it as a company that has more than 50% of the value of its outstanding stock directly or indirectly owned by five or fewer individuals at anytime during the last half of the tax year. The Wall Street Journal points out that 90% of all companies in the US are closely held!
In the majority opinion, the decision protects the religious liberty of the owners of the companies. SCOTUS (Supreme Court of the United States) rejected the argument that organizing as a corporation eliminates companies from the protections given to individuals. So, in effect, corporations are now free to exercise their religious rights. Closely held corporations are not necessarily small mom and pop stores on the corner either. Hobby Lobby employs about 30,000 people. In her dissent, Justice Ginsburg points out that the candy giant Mars, Inc, is also a closely held corporation, employing about 72,000 and taking in $33 billion in revenue.
At issue in this case, specifically, is an objection to the “morning after pill” and the IUD, as the companies involved believe that these forms of contraception act as abortefacients. While medically incorrect, the court chose to accept the assumptions of the companies over the actual science. The court also accepted the argument that there was a substantial burden placed on the companies by asking them to provide health insurance that included contraceptive coverage.
In her dissent, Justice Ginsburg points out that simply opting out of insurance coverage and paying the penalty was actually cheaper than providing health coverage for their employees, with or without contraceptive inclusion. So the court has accepted religious assumption over medical fact as well as a bizarre calculation of “economic burden” and allowed individuals to impose their religious beliefs on their employees.
It is, of course, true that women can find contraceptive care elsewhere, but it is not that simple. When I worked in the south Bronx, Fidelis managed a substantial portion of the city’s Medicaid plans. Fidelis, as a catholic corporation, declined to cover any contraceptive or family planning service for their enrollees. Generally, this was not explained fully at the time of enrollment and many women in our clinic were astounded to find that these services were denied under their plan. While there was an administrative way around this restriction, it was complex and not readily available. As a result, many of our patients were unable to obtain contraceptive services. Of course, that put them at risk for unplanned pregnancy and an increased use of abortion services.
While the vast majority of closely held corporations in this country will not impose contraceptive coverage restrictions on their employees, this ruling, at a practical level, will necessitate a new level of caution when searching for a job. It will now be necessary for an employee to ask whether or not contraceptive coverage is offered in their benefits package. In the past, this was simple; if you applied for a job with the arch diocese, you knew, a priori, that contraceptive coverage would not be part of your insurance package. Now the waters will be murkier. And, in this time of slowed economic growth, will employees be forced to choose between employment and contraceptive coverage?
It is currently illegal for an employer to ask a potential employee about their marital status, religion, pregnancy status, or sexual orientation. Will potential employees be allowed to ask about their potential employers’ religious beliefs and family planning coverage? Or will those employees find out after the fact that these essential services are effectively denied them?
Realistically, this will affect not just employees, but their wives and female children as well. Will nonmedical uses of contraceptives also be denied? Will women with menorrhagia be denied coverage for a Mirena IUD? Will adolescents with acne be denied coverage for birth control pills? In the final analysis, this supposedly narrow ruling has a potentially enormous reach, and we have only just begun to see how far its limits will be tested.