The Supreme Court’s ruling on the Hobby Lobby case will put your boss right into the doctor’s examination room with you. Or else it will completely erase your rights to religious freedom if you make the mistake of starting a business. Or neither.
To hear either side argue it, the outcome of the Hobby Lobby case will be dire. It will either allow employers to impose their religious beliefs on their workers, or it will allow the federal government to force business owners to go against their consciences.
But in the end, this case will not affect the success of the Affordable Care Act, aka Obamacare, and it’s unlikely to affect the majority of Americans in any way.
Legally, the case is about religious freedom and whether the federal government, in the form of the Affordable Care Act, can force a business owner to pay for medical care he or she objects to on religious grounds.
Medically, it revolves around just a few forms of birth control.
The case pits the federal government against three businesses — craft store Hobby Lobby and Mardel bookstores, both owned by David Green of Oklahoma City and his family, and Conestoga Wood Specialties, a Pennsylvania cabinet-making company owned by the Mennonite Hahn family.
“You get to pick your opinion. You don’t get to choose your facts.”
Neither objects to birth control in general — just four particular types that the families believe abort a very early pregnancy: two types of intrauterine device (IUD), and two types of birth control pills called Ella and Plan B.
“Respondents believe that human beings deserve protection from the moment of conception, and that providing insurance coverage for items that risk killing an embryo makes them complicit in abortion,” Paul Clement, the former George W. Bush administration solicitor general who argued for the business owners Tuesday, wrote in his brief to the Supreme Court.
However, many doctors do not agree that these forms of birth control interrupt a pregnancy. They say what they do is prevent conception in the first place.
“A common misconception is that emergency contraception causes an abortion. Inhibition or delay of ovulation is the principal mechanism of action,” the American College of Obstetricians and Gynecologists says in a statement.
The Food and Drug Administration says it’s trying to make this clear, also. “A contraceptive intrauterine device (IUD) is a device used to prevent pregnancy,” it says on its website.
Cecile Richards, President of Planned Parenthood Action Fund, says the company owners wrongly believe that these forms of birth control work after conception. “You get to pick your opinion. You don’t get to choose your facts,” she told reporters.
Health groups argue that contraception is a vital part of a woman’s health care and it’s not for an employer to parse out what he or she thinks is vital, or ethical. It’s one of the reasons the federal government asked the independent Institute of Medicine to lay out what key health services should be covered by health insurance.
“Our bodies are not our bosses’ business,” says Ilyse Hogue, President of NARAL Pro-Choice America.
ACOG and other groups say if the companies get their way, it opens a slippery slope to allowing employers to deny coverage for vaccines, or blood transfusions. Civil rights groups have signed on saying it’s the same thinking that people once used to justify racial discrimination.
But the families who own Hobby Lobby and Conestoga, and their backers, aren’t buying it. Number one, they say, there is clear evidence certain forms of birth control can prevent a fertilized egg from implanting — and that, in their eyes, is abortion.
Second, they argue, it’s been perfectly legal up to now for business owners to deny coverage for vaccines or blood transfusions, and yet they haven’t. And they bristle at the suggestion that they’d use a ruling to justify discrimination.
“The only sense I had from the questions was that the court took this case very seriously, as it does all its cases."
“To me, the implications of the case are not all that huge,” says Mark Rienzi, a law professor at Catholic University in Washington and for the Becket Fund who filed a brief on behalf of Hobby Lobby and Conestoga.
“The kind of behavior that is being talked about was entirely legal until 2012,” adds Rienzi. That’s when provisions of the 2010 Affordable Care Act kicked in that required insurers to cover 10 basic services, including birth control, vaccinations and cancer screening.
“Virtually all businesses are fine with the contraceptive mandate. It's only a tiny percentage that sued,” added Rienzi. He thinks the federal government should just make an exception for business owners like the Greens and Hahns. “They could do it with a stroke of their pen if they thought it was important enough,” he said.
So could the court make a sweeping declaration that for-profit companies should have the same right as a church to claim a religious exemption from the law? Or carve out a smaller exemption for closely held companies but not big corporations?
One thing’s clear — the questions the Justices asked may have little bearing on how they’ll rule.
It’s important to note that this particular bunch of Supreme Court justices can issue surprise decisions. They did so in upholding the health reform law itself in 2012, when Chief Justice John Roberts stunned just about everybody. He said the law was constitutional, but gave the states the right to opt out of the provision requiring the expansion of Medicaid.
Yes, the three female justices, who also happen to be from the more liberal wing of the Court, asked a lot of questions about potential effects on employers; rights to opt out of paying for all sorts of health care, or even the minimum wage. And yes, Justice Anthony Kennedy, considered the swing vote on the court, asked whether a decision in favor of the Obama administration might lead to Congress someday forcing an employer to pay for a worker’s abortion.
“The only sense I had from the questions was that the court took this case very seriously, as it does all its cases,” Paul Clement, a former U.S. solicitor general who represented the companies, told reporters after the arguments.
First published March 25 2014, 2:02 PM