Why the Hobby Lobby Ruling Will Be Mostly Irrelevant Soon

Why the Hobby Lobby Ruling Will Be Mostly Irrelevant Soon July 1, 2014

This thought suddenly occurred to me Monday night as I was prepping for a Google Hangout to discuss the Hobby Lobby ruling: The majority opinion gave a roadmap for how the Obama administration can essentially moot the ruling unilaterally. In fact, they can do it today if they want. Let me explain.

In the ruling, Justice Alito pointed out that the contraception mandate was not the least restrictive means of achieving the goal — the compelling state interest — of maximizing birth control coverage. One of the ways he said it could be done without burdening the religious freedom of companies by forcing them to pay for contraception would be to extend the accommodation already granted to religious non-profits and offer it to religious for-profits as well.

That accommodation means that if a religious non-profit objects to the mandate, they just have to notify the government and their insurance company must then provide a rider to cover contraception without charge to each employee that wants one. And the ruling says that they can just extend that accommodation to religious for-profit companies and that would be a constitutional way to achieve the goal. At first I thought that this would require Congress to amend the law, but I was wrong.

That accommodation was not part of the original bill at all. It was an implementation rule written by the Department of Health and Human Services and released in December, 2012. So they can now amend that accommodation without congressional approval. To make sure I was on the right track, I asked my good friend Dan Ray, who teaches constitutional law, to comment on it. He said:

Yes, Ed, I think that’s right. HHS will modify the regs to extend the secondary accommodation to closely-held for profits. If the challenge to the secondary accommodation fails – as it should – then the immediate damage from the decision is limited.

I fully expect President Obama to do this pretty much immediately. That would, for all practical purposes, moot this ruling and make it irrelevant when it comes to contraception coverage.

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  • Pteryxx

    Does this:

    and their insurance company must then provide a rider to cover contraception without charge to each employee that wants one.

    involve the employer having a record of which employees request contraception coverage? Because if so, the threat of harassment or firing (under religious codes of conduct banning fornication) could prevent employees from requesting those riders even if it would be constitutional to provide them.

    (examples: Ohio, Florida, Montana and others)

  • jamessweet

    Yeah, that was the impression I got too, but I haven’t had time to read the majority opinion myself yet, so I was keeping mum. Symbolically, the ruling is terrible; but it might have little practical import if this is how things go down.

  • Doug Little

    That accommodation means that if a religious non-profit objects to the mandate, they just have to notify the government and their insurance company must then provide a rider to cover contraception without charge to each employee that wants one.

    So how is that different from providing contraception via the normal means? Does it have to do with the religious institutions being able to feel good about themselves via some form of imaginary plausible deniability?

    Seems like it’s just adding additional complications to the whole process with the outcome being exactly the same.

  • Sastra

    A ruling then which contributes to a cultural mindset of religious privilege but which is essentially without teeth?

    “Yes, yes, faith is very very important and we’ll let you announce this to the public loud and bold — but it’s not going to be treated like it matters in the long run. You get a personal corner. Rah rah.” Sort of like keeping “under God” in the Pledge of Allegiance while insisting that the phrase can’t be used as a justification to do anything — like disenfranchise or punish atheists. Lots of show with little substance.

    Will that work? I mean, will it sooth and distract the religious … as secularism gains more and more ground? I don’t know. My experience suggests otherwise — that it only makes them bolder and more convinced of their right to power and more inclined to use it — but personal experiences of people’s attitude may be trumped by what’s going on legally in the Big Picture.

  • Pteryxx

    to each employee that wants one.

    It also potentially singles out employees that request contraception coverage, who could then be penalized or fired for fornication (because contraception’s only recreational to these folks, of course.) I left a comment with too many links giving examples; here’s a roundup.

    http://www.motherjones.com/politics/2014/02/catholic-religious-schools-fired-lady-teachers-being-pregnant

  • doublereed

    That accommodation means that if a religious non-profit objects to the mandate, they just have to notify the government and their insurance company must then provide a rider to cover contraception without charge to each employee that wants one.

    Can the non-profit argue that notification is a “substantial burden”?

    Do the employees have to say whether they want the rider, leading to discrimination against those employees?

  • eric

    That would, for all practical purposes, moot this ruling and make it irrelevant when it comes to contraception coverage.

    Well, there are important differences worth considering.

    On the con side, the ‘extend the accommodation’ method puts an extra burden on employees wanting contraception coverage. They must now sign up for two health care plans – a regular one and their BC supplement. They must track and manage both. And because this method makes BC coverage an “opt-in” system rather than “opt out,” we can be reasonably sure that the practical effect will be less women get coverage.

    On the pro-side, the long term effect of this decision could be to move us way from employer-based care altogether. The more such exemptions that employers create in their plans, the more likely people are to say screw it and just buy their own, more comprehensive plans on the exchange. This, however, is a long-term speculative impact. In the short term I expect that the ruling will hurt employees of places like HL, for the reasons I state above.

  • eric

    @4 – are you saying that employees must request the supplementary coverage through their employer? That IS bad…but I don’t think that’s how it works. I think that if you work for a religious nonprofit that doesn’t support contraception coverage, the employee goes to ACA or some other third-party to get it. So AIUI, your employer wouldn’t even know if you had signed up for it. Its sort of like getting your own IRA separate from your 401k or 403B – your employer doesn’t have any clue who does or doesn’t do that.

  • Childermass

    I strongly suspect that any attempt to go around the court that has any effectiveness will be struck down.

    Meanwhile, I have seen a conservative meme on Facebook mentioning that 90% of companies are closely held. Admittedly they might be overreaching the vast majority of those companies lack a clear religious agenda, but still those who wish to deny women their reproductive rights are clearly hoping to go far beyond family-run companies.

    In any event, companies are people with rights. Employees are bugs without them.

  • TCC

    That may be true in the short term, but there are challenges pending to the accommodation itself (and an injunction was issued last night suggesting that one judge thinks the appeal is meritorious), with religious non-profits saying that even being required to fill out a form is essentially allowing someone else to sin for them by proxy. Alito’s decision does seem to support the accommodation, but Kennedy’s concurring opinion suggests that the least restrictive means would be for the government to provide contraception to anyone who wants it. I don’t know personally, but I can’t be exceptionally optimistic about anything involving religious freedom with this court.

  • Pteryxx

    They must now sign up for two health care plans – a regular one and their BC supplement. They must track and manage both.

    That reminds me of how well THAT worked (/sarcasm) with the “rape insurance” bill.

    http://www.slate.com/blogs/xx_factor/2013/12/12/michigan_passes_so_called_rape_insurance_bill_state_bans_insurance_coverage.html

    eric @7, I don’t know if the process means employers would find out which employees applied for contraceptive riders or not. If they can, though, the riders become largely useless. All it would take is some carelessness on the insurer’s part to expose that information to an employer.

  • Randomfactor

    Can the non-profit argue that notification is a “substantial burden”?

    That is exactly what the Catholic Church has done–refuse to sign the notification.

  • raven

    It also potentially singles out employees that request contraception coverage, who could then be penalized or fired for fornication

    1. Only if your employer finds out. And it is none of their business what you do after their clock stops. I certainly wouldn’t tell creeps like Hobby Lobby anything.

    2. There is always the option which was common long ago and common now. People just pay for their contraception out of their own income. There are many subsidized and low cost options for poor people.

    3. The state has a compelling interest in making contraception available to everyone. Every dollar they spend on BC saves them 3 dollars in welfare and related costs. BC is also one of the best methods known to prevent…abortions.

    4. AFAICT, this is simply a way for the Oogedy Boogedy fundie kooks and the forced birthers/female slavers to beat up on women. And it is only symbolic.

    I doubt too many women are going to have babies they don’t need or want just because of Steve Green, Hobby Lobby, the toxic religious cults, and the forced birthers.

  • Reginald Selkirk

    Could the court be more clear? They want a single payer system.

  • D. C. Sessions

    No, the Court doesn’t want single payer. The Court knows perfectly well that single payer is politically impossible, so holding up single payer as the “least restrictive means” essentially blocks other options while leaving no realistic alternative.

    The best of all worlds: keep women from getting coverage while avoiding the blame for it.

  • cptdoom

    The real problems with the ruling lie not in the ability of the ACA to accommodate these ridiculous objections, but that the Courts a) believe that corporates, even “closely held” ones, have rights on which the government can impose and b) that employers can now limit the medications available to their employees based on misunderstandings of the side effects those medications can have. Neither bodes well for a secular society where all are supposed to be treated equally, nor does it bode well for other laws that require business owners to “violate their religious beliefs” by treating those with different beliefs equally. This decision will be cited again and again by the anti-gay movement as they move to the next phase of their attack on my rights – public accommodation laws.

  • karmacat

    I’m too lazy to look at the arguments but wanted to know if anyone brought up that access to oral contraceptives is a medical issue and not a moral issue. Employers are not allow to deny employees blood transfusions. How is this any different? Oral contraceptives are used to treat a lot of different health problems as well as prevent pregnancy which can be serious or even just a moderate medical problem.

  • karmacat

    Perhaps we need to withhold prostate medicines from the male supreme court justices (assuming that a few have to take the medicine) and see how fast they change their mind about oral contraceptives.

  • eric

    pteryxx:

    If they can, though, the riders become largely useless. All it would take is some carelessness on the insurer’s part to expose that information to an employer.

    Right now there are all sorts of laws preventing health providers from disclosing your information to third parties without your explicit permission. If Hobby Lobby finds a way around those laws and acts on information they gain illegally to fire you, they should be punished for that…but it doesn’t mean the rider law is bad. It just means our society is not perfect at enforcement.

    TCC:

    …with religious non-profits saying that even being required to fill out a form is essentially allowing someone else to sin for them by proxy. Alito’s decision does seem to support the accommodation, but Kennedy’s concurring opinion suggests that the least restrictive means would be for the government to provide contraception to anyone who wants it.

    I didn’t read his concurrence that way. IMO both Alito and Kennedy’s written decisions implied to me that they think the rider solution is a constitutionally viable option. Kennedy spends a lot of text talking about how the rider option makes required coverage ‘not least burdensome.’ It is very hard to square that text with the idea that Kennedy doesn’t think the rider option is constitutional.

  • raven

    Oral contraceptives are used to treat a lot of different health problems as well as prevent pregnancy which can be serious or even just a moderate medical problem.

    Yeah, pregnancy can be life ending for a lot of women due to underlying medical conditions.

    PAH, pulmonary arterial hypertension and pregnancy are frequently lethal.

    There are others. My friend had immune system problems with her pregnancy and almost died, spending some time in the ICU in a coma. Her doc told her, “If you have one more kid with that guy (her husband), you will die.”

  • Pteryxx

    1. Only if your employer finds out. And it is none of their business what you do after their clock stops. I certainly wouldn’t tell creeps like Hobby Lobby anything.

    That’s not how morality codes work, which some religious organizations use as conditions of employment and which have in some cases been upheld in court; see my link in #4 above, which pertains to pregnancy, but morality codes have also been used to fire people for participating in Pride events. See also “A Town Without Contraception” at Zvan’s, where only one doctor in town would have been allowed to provide contraception. Every patient seen visiting that doctor would be suspect, privacy or no.

    2. There is always the option which was common long ago and common now. People just pay for their contraception out of their own income. There are many subsidized and low cost options for poor people.

    I don’t think those are sufficient, given the closure of clinics, cutting of aid, people working two or more jobs and surviving on food stamps, and the current increase in self-induced abortion. If these women had reliable access to contraception, there wouldn’t be so many flea market abortions.

    3. The state has a compelling interest in making contraception available to everyone. Every dollar they spend on BC saves them 3 dollars in welfare and related costs. BC is also one of the best methods known to prevent…abortions.

    I’m in Texas. We made all those arguments, before the legislature, trying to stop them cutting family planning services across the board. Down here we can’t even fund sex ed that acknowledges contraception exists.

    I think you really underestimate the extent and power of anti-contraception politics. Which is why I don’t trust for one minute that the Hobby Lobby ruling is merely symbolic or narrow or irrelevant. It’s just recapitulating the strategy that parlayed Roe v. Wade’s “reasonable restrictions” into hundreds of supposedly minor barriers that make abortions in practice almost impossible to obtain.

  • D. C. Sessions

    employers can now limit the medications available to their employees based on misunderstandings of the side effects those medications can have.

    Note that the Court placed no clear limits on how far from medical knowledge those misunderstandings can go I think they might concede that the barrier methods (condoms, diaphragms, air gap) are going too far, but (what a surprise!) at least two of those aren’t covered by the PPACA anyway.

    The Pill, on the other hand, is really no different from Plan B. If someone wants to say that their religious rights are violated by women causing “abortions” with low-dose estrogen, I don’t see anything in the ruling to contradict them.

  • raven

    I think you really underestimate the extent and power of anti-contraception politics.

    ???? Maybe I don’t. For Texas.

    However, I’m not in Texas. I live on the west coast. Out here, from Washington, Oregon, California, birth control is normal, highly thought of, and widely available. It was the same in the Northeast.

    I used to fly into Texas occasionally on business without thinking much about it. In fact, I once had not very good job offer at a really good institute in that state. These days, I’d be afraid and refuse to set foot there.

    That’s not how morality codes work, which some religious organizations use as conditions of employment and which have in some cases been upheld in court;….

    The vast majority of people don’t work for religious organizations. And even a lot of religious organizations don’t have a problem with birth control. Anti-contraception is a Catholic and fundie thing.

  • whheydt

    Re: Childermas @ #8…

    Not sure about the 90%, but apparently, just over 50% of the GDP and employment is by closely held corps.

    Bear in mind that a *lot* of those will be pretty small and the ACA requirements don’t kick in until the company has over 50 employees.

    I was idly thinking about these issues last night because I’m part owner of a very small business (we run an annual regional tabletop gaming convention). I say “idly” because we have no employees at all and there is no combination of five owners that have over 50% ownership (about a dozen of us and the corp. is evenly split among us), so we don’t even qualify as “closely held” under the IRS definition.

    Re: karmacat @ #16….

    The decision specifically stated that they weren’t including an exemption for blood transfusions or vaccinations. Oddly, that’s a direct slap at the JWs, whose objection to transfusions actually has a Biblical basis, while permitting exemption from contraceptives, a position that has been taken up much more recently than that of the JWs and has no Biblical basis at all.

    As for the vaccination point….not sure where that came from other than the justices being aware that the anti-vaxxers are blowing smoke.

  • raven

    I don’t think those are sufficient, given the closure of clinics, cutting of aid, people working two or more jobs and surviving on food stamps, and the current increase in self-induced abortion. If these women had reliable access to contraception, there wouldn’t be so many flea market abortions.

    3. The state has a compelling interest in making contraception available to everyone. Every dollar they spend on BC saves them 3 dollars in welfare and related costs. BC is also one of the best methods known to prevent…abortions.

    Just what is your point here?

    That every thing is hopeless and you and other women are going to have babies you don’t want and can’t afford because Steve Green, Rick Perry, and John Hagee made you do it.

    No, the situation isn’t good. But I wouldn’t let weird religious kooks dictate my major life decisions. That is just silly and lets them fulfill their fantasy of power mad controllers in service to a monster god.

  • Pteryxx

    However, I’m not in Texas. I live on the west coast. Out here, from Washington, Oregon, California, birth control is normal, highly thought of, and widely available. It was the same in the Northeast.

    That’s nice. Keep an eye to your hospitals and health care networks being merged under Catholic directives, which may be interpreted to apply to any physician with a working relationship there.

    Catholic hospitals now account for about 16 percent of hospital beds in the U.S. And in eight states — including Washington, Oregon, Iowa, and Missouri — they control more than 30 percent of beds. Ten of the 25 largest health-care networks in the country are Catholic-sponsored.

    (cited in my comment here)

    see also The Stranger

  • JustaTech

    Raven, just as a side note about costs, and IUD, which requires a doctor or nurse to place, costs about a thousand dollars. Now, it’s good for 5-10 years, is the most reliable form of birth control and is one of the treatments of choice for dangerously heavy bleeding, but it can still be hard to come up with that money all at once. Oh, and IUDs are one of the forms of birth control specifically called out by the religious, because it can (*can*) prevent implantation. So costs really can be a factor.

  • raven

    That’s nice. Keep an eye to your hospitals and health care networks being merged under Catholic directives, which may be interpreted to apply to any physician with a working relationship there.

    Yeah, I know. That is a problem.

    There has been some pushback. A Catholic chain tried to buy the floundering Ashland, Oregon community hospital. People complained and the deal fell through.

    Planned Parenthood is common here. Whenever the forced birthers appall me enough, I donate to them. And the next one is scheduled for…right now.

    It makes me feel better, hopefully ticks off the fundies, and does some good.

  • raven

    Raven, just as a side note about costs, and IUD, which requires a doctor or nurse to place, costs about a thousand dollars.

    Raising a child from conception to age 18 runs around $150,000. For a teenage single mother, the state is usually going to pick up much of that cost.

    When I was in college back in the Dark Ages, for young, low income women, an IUD was heavily subsidized and didn’t cost much.

  • Having to apply for the separate contraception rider is still an extra hoop to jump through, though.

  • Peter Huston

    A bit late, but regarding those who think the accomadtion will be struck down (posts 8,9,etc.): I doubt it. Read the concurring opinion. In it, Justice Kennedy (I think, someone at least) says specifically that providing contraception is a compelling goverenment interest and that the non-profits accomadation is acceptable. So, if a suit comes before the court, he and the 4 justices who dissented in this case will form a majority and uphold the accomadition. Heck, even some of the language from the main opinion seems to suggest this accomadation is acceptable.

  • Pteryxx

    Just what is your point here?

    – That access to BC in general is a bigger problem than you make it out to be in #12. If it’s not so bad where you are, at least not yet, at least take some warning from the legal and procedural precedents being set down here in holy-book land. (and in Louisiana, Florida, the Carolinas, Pennsylvania, Ohio…)

    – Re the OP, that IMHO the separate insurance rider is probably not as easy a solution as it looks, because of precedent for end-runs around confidentiality, and because of precedent for the failure of insurance riders, both in the closely related context of abortion access. If contraception riders turn out to be widely available and accepted without problems, great, but I’ve got reason to expect that won’t happen without a lot of vigilance.

    By the way, don’t assume my gender, thanks. I still have to live here and have my sales taxes used to fund CPCs.

    re IUDs: they’re often placed immediately after childbirth, at the patient’s request. When IUDs aren’t permitted by the hospital, they have to be placed later at a separate appointment, at greater cost, after a window of dependence on less-effective methods.

    http://rhrealitycheck.org/article/2014/03/27/2014-the-year-of-the-iud/

    Some insurance companies are illegally denying coverage of more expensive contraceptives like the IUD, making it difficult for patients to acquire this safe, effective health-care product. To combat this, we’re recommending that advocates continue to monitor ACA implementation and work to ensure individuals are able to access their preferred method.

    Still, other barriers to IUD use remain: challenges with keeping the product in stock and available for same-day insertion; billing codes that make it impossible to bill for IUDs on the same day other services, like maternity care and abortion, are provided; and difficulty with reimbursement providers experience that could result in delays for patients. However, access should be easier than ever before.

  • Pteryxx

    Amanda Marcotte: ‘Hobby Lobby’ Is Part of a Greater War on Contraception

    I realize it’s tempting to minimize this and say that they aren’t all that bad—that things can’t be that bad. And it’s true that, so far, we’re not seeing any moves from the anti-choice movement to outright ban contraception, or even to ban female-controlled versions like the pill and the IUD for which they have a special hatred. But that’s because, while they do spout endless fantasies about their version of paradise where icky sex mostly goes away (their paradise being hell for the rest of us, of course), anti-choice activists are not stupid. They know that rolling out a hardline anti-contraception agenda is going to cause most Americans to shut down and laugh them out of the room.

  • eric

    pteryxx @20:

    That’s not how morality codes work, which some religious organizations use as conditions of employment and which have in some cases been upheld in court; see my link in #4 above, which pertains to pregnancy, but morality codes have also been used to fire people for participating in Pride events. See also “A Town Without Contraception” at Zvan’s, where only one doctor in town would have been allowed to provide contraception. Every patient seen visiting that doctor would be suspect, privacy or no.

    I think you’re asking the law to do too much. An ACA rider providing an employee with free contraception coverage isn’t responsible for preventing illegal workplace discrimination based on small town scuttlebut, and it isn’t responsible for ensuring there’s a pharmacy within 10 miles of every employee. Hopefully the workplace discrimination will be taken care of with pre-existing law, and I’m not sure what to do about the access situation. But overall, I think you’re putting up a lot of arguments here making perfect the enemy of good. Yes, it would’ve been better if SCOTUS had ruled the other way. But OTOH Kennedy and Alito tacitly acknowledging that the ACA contraception rider concept is constitutional still leaves women (and familiies, and parents) in a better position than they were before Obama took office, where there was no free contraception coverage.

  • Pteryxx

    eric @33: That’s why I object to the OP’s conclusion that the ACA rider makes the Hobby Lobby exemption irrelevant “for all practical purposes”.

  • greg1466

    I seem to recall that when employees of a religious group tried to get the waiver, the religious group refused to provide the paperwork that the employees needed to get the coverage directly from the insurance company. So the end result was not just that the employer refused to provide the coverage, but that they also refused to allow the employees to get the coverage at all.

    Even if I’m wrong about that and there is a way around the details of the decision. So what? The core of this decision is that an employer has the right to force their religious beliefs on their employees…and that’s a big problem.

  • bumperpuff

    Perhaps the insurance companies should just charge more for coverage that doesn’t provide contraception coverage due to higher costs associated with child birth and pre-natal care. Then the insurer can more easily provide contraception, to those who want it, “out of pocket”.

  • D. C. Sessions

    @36

    That’s been my proposal all along: that the insurers be required to provide contraception at the actuarily-determined difference in cost between the plan without contraception and the plan with. Which would have meant that Hobby Lobby’s employees could get contraception coverage at a negative net cost — and that Hobby Lobby would be paying a very obvious surcharge for the privilege of shafting its employees. Which the employees can pocket and still not get shafted.

  • criticaldragon1177

    Ed Brayton,

    I hope that you’re right about this. I’m no legal scholar but it sounds like you’re idea might work. I hope you’re right, but I’m not an expert on the law.