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Can employers cherry pick health care? Supreme Court to decide

The US Supreme Court has agreed to rule on the contraceptive mandate
The US Supreme Court has agreed to rule on the contraceptive mandateKAREN BLEIER / AFP - Getty Images, file

The Supreme Court has decided to hear two of the dozens of lawsuits filed against one of the main requirements of the 2010 Affordable Care Act — that health insurance pay for birth control as part of a suite of basic preventive services.

If it rules in favor of the two companies — Hobby Lobby and Conestoga — it could open the door to all sorts of cherry-picking, for instance, refusing to cover AIDS patients or to allow for hospice care, advocates argue.

“These cases would create a very slippery slope giving employers a right to impose their own medical practices on their employees,” says Cecile Richards of Planned Parenthood Federation of America.

The suits frame the issue as one of religious freedom. The two suits have ended up with opposing rulings from lower courts: in June, the 10th U.S. Circuit Court of Appeals in Denver said Oklahoma-based Hobby Lobby had a right to religious expression just as a corporation has the right to political expression. In the second case, the 3rd Circuit Court of Appeals said in July that Lancaster County, Pa.-based Conestoga Wood products, owned by a Mennonite family, is a for-profit, secular corporation that cannot exercise religious beliefs.

The question may come down to whether a corporation can have religious beliefs. The Obama administration has already said some employers can use their religious beliefs to withhold contraceptive care; churches and church-affiliated organizations such as universities get exemptions from the birth control mandate, for instance.

But more than half of Americans get their health coverage through an employer, and the advocates worry that letting employers decide what kind of medical care they will cover will create a mess.

“The right they are seeking could be applicable to every type of health coverage – if they had a problem with end-of-life care, of they had a problem with HIV coverage, for example,” says Marcia Greenberger, co-president of the National Women’s Law Center.  

Judge Ilana Rovner of the 7th Circuit Court of Appeals made a similar argument in her dissent in a ruling last year on one of the cases the Supreme Court hasn’t decided to consider. She said letting corporations use religious beliefs to deny health coverage means patients can’t get covered for stem cell treatments, or even standard western medicine at all if, for instance, an employer was a Christian Scientist who believed in prayer but not conventional medicine. 

The Affordable Care Act, widely known as Obamacare, says insurance policies must pay for 10 basic services, which include birth control but also cancer screening, mental health care, vaccination and other interventions to prevent disease. The reasoning is that keeping people healthy is cheaper than paying to treat them for illnesses later, and study after study shows that preventing unwanted pregnancies leads to better health for women and their babies.

The suits brought by Conestoga and Hobby Lobby argue that some methods of birth control amount to abortion. But Richards and Greenberger point out that the contraceptives covered under the Affordable Care Act are approved as contraceptives, not as abortion-causing treatments, by the Food and Drug Administration. The American college of Obstetricians and Gynecologists (ACOG) agrees.

The Health and Human Services Department says 90 percent of American women have used birth control. The Centers for Disease Control and Prevention estimates that 10.7 million U.S. women use birth control pills. Despite this, CDC says nearly half of all pregnancies are unintended.

“It is extraordinary that in this century some employers see birth control as controversial because it is the most commonly prescribed medical intervention for women in American,” Richards said.

And, she points out, surveys show 98 percent of U.S. Catholic women have used contraception against the explicit guidance of the church.

“Birth control is basic health care,” she said.

The White House makes the same argument. "As a general matter, our policy is designed to ensure that health care decisions are made between a woman and her doctor,” White House spokesman Jay Carney said in a statement. “The Administration has already acted to ensure no church or similar religious institution will be forced to provide contraception coverage and has made a commonsense accommodation for non-profit religious organizations that object to contraception on religious grounds.”

But lawyers for Conestoga raised a different argument. “A government that forces any citizen to participate in immoral acts — like the use of abortion drugs — under threat of crippling fines is a government everyone should fear,” senior counsel David Cortman of the group Alliance Defending Freedom said.

“The administration's mandate is an attack on religious freedom, and I'm hopeful it will be reversed by the Court,” agreed House Speaker John Boehner.

Brigitte Amari of the American Civil Liberties Union says she is glad the Supreme Court will rule. “There was a need for resolution on this issue,” she said in a telephone interview. “There was a patchwork of decisions coming through the courts of appeal.” More than 80 suits have been filed against the mandate.

The Supreme Court will hear arguments on the cases in spring and would be expected to rule by the end of June of next year.

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