A picture is worth 1,000 words, but some videos are worth a second view. Here is an encore video from the past year, originally published on June 30, 2014.
The Supreme Court has struck down the Affordable Care Act requirement that employers must include no-cost contraceptive coverage in employee health insurance plans.
The decision issued today in the Hobby Lobby case () follows conflicting appellate court rulings in cases involving businesses that objected to the ACA's birth control requirement on religious grounds. The businesses said the ACA stepped on their religious freedoms.
The 2010 health law mandates that all health plans provide preventive services -- including birth control -- free of cost-sharing. But some corporations -- and its sister company Mardel, a Christian bookstore chain -- sued the Department of Health and Human Services to be exempted from having to comply with the mandate.
In its 5-4 decision, written by Justice Samuel Alito, the Court ruled that the mandate violates the Religious Freedom Restoration Act of 1993, “which prohibits the ‘Government [from] substantially burden[ing] a person’s exercise of religion’” unless it shows that doing so is “in furtherance of a compelling governmental interest” and “is the least restrictive means” of doing do.
The decision summary also notes that the Department of Health and Human Serivces (HHS) “argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies, but that would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as corporations. RFRA's text shows that Congress designed the statute to provide very broad protection for religious liberty and did not intend to put merchants to such a choice."
Donna Harrison, MD, executive director of the American Association of Pro-Life Obstetricians & Gynecologists (AAPLOG), noted that Hobby Lobby was in particular objecting to very specific contraceptives — the emergency contraceptive Ella and intrauterine devices, which she noted are capable of killing embryos, either by preventing their implantation or killing them after they have been implanted.
"The spin is going to turn into 'This is decision about contraception' -- that's not at all what it is," Harrison told 鶹ý. "It's about ending the life of another human being."
Art Caplan, PhD, director of the medical ethics division at the NYU Langone Medical Center in New York City, had a different take. “I think the decision could have a very negative impact” on women's ability to obtain contraception, “not that a lot of companies are going to say they are not going to provide contraception, but it could affect many women even if only a small percentage of companies followed suit."
"The other problem," he told 鶹ý in a video interview, "is that if your employer says 'I'm not covering contraception,' you may decide to go with methods that don't involve pharmaceutical control, or you may rely on something like emergency contraception" -- decisions that could lead to more abortions, which would be an ironic outcome since many employers' objections to contraception revolve around their objections to abortion.
Harrison, of AAPLOG, noted that the decision should be reassuring to physicians who object to prescribing particular forms of contraception that they see as abortifacients, since insurers may have been considering excluding such doctors from their provider networks if the mandate had been upheld. "This will help incentivize insurers to not exclude ‘conscientious doctors’ from their networks," she said.
More Physician Groups Weigh In
Many of the other physician groups issuing statements today expressed disappointment in the ruling.
“Allowing for-profit employers to exclude coverage for contraception is itself deeply concerning because of the demonstrated adverse impact it will have on women’s health,” David Fleming, MD, president of the American College of Physicians, said in a statement. “And, although we certainly hope that the Supreme Court’s decision does not result in for-profit employers obtaining exemptions for vaccinations and other evidence-based benefits, the ruling clearly does not preclude for-profit employers from challenging such mandates, or the courts from granting further coverage exemptions.”
Rebecca Sokol, MD, president of the American Society for Reproductive Medicine in Washington, said in a statement that her organization “profoundly disagrees” with the decision.
“Allowing an employer to impose their beliefs about reproduction on their staff is simply wrong, particularly when those beliefs are so clearly misinformed on the scientific and medical facts,” Sokol said. “In no other field of medicine do we allow employers to substitute their judgment for that of patients and physicians; it should not be allowed just because the subject matter is reproduction.”
Between Women and Their Physicians
Lin-Fan Wang, MD, reproductive health advocacy fellow at Physicians for Reproductive Health in New York City, said in a video interview that “decisions about contraception should really be made between a woman and her doctor, and not by her employer.”
Wang recounted the story of one of her own patients, a woman who had recently had a baby and then went back to work, and was having trouble remembering to take her birth control pills.
“She chose one of the intrauterine devices … because it was one of the most effective forms of contraception and she didn’t have to think about it every day,” she said. “Luckily her insurance plan covered the cost of this very expensive form of contraception, but under the ruling today, patients like [her] might not be able to choose that method and she may end up having to choose a method that is hard for her to take or she’s not happy with.”
Reproductive rights groups also expressed their concerns. Bebe Anderson, JD, director of the U.S. Legal Program at the Center for Reproductive Rights in New York City, called the decision “an affront to women of this country.”
“As Justice [Ruth Bader] Ginsburg recognized in her dissent, this decision makes it very difficult for women to get some of the best long-acting reversible forms of contraception,” Anderson told 鶹ý in a video interview. “For example, IUDs are as expensive as 1 month’s pay for someone working at minimum wage.”
Cecile Richards, president of the Planned Parenthood Action Fund, called the ruling "stunning." On a call with reporters she said it was no coincidence that the majority opinion was decided by five male justices.
"It is endlessly frustrating for women that decisions about their healthcare are being made by people who never need to use birth control, and it is no coincidence that all three women on the court signed today's dissent," Richards said.
On the same call, Marcia Greenberger, co-president of the National Women’s Law Center, said the decision was “a bitter pill for women to swallow … These [plaintiffs] and other closely held companies will now have license to harm their female employees in the name of the company's religion, and ignore the moral and practical considerations of women themselves."
Other Implications
Several commenters noted that, although the majority opinion specifically states that this ruling does not apply to religious objections to other healthcare benefits such as vaccinations and blood transfusions, this opens up the way for plaintiffs to sue about those as well.
"Regardless of what they said, they've opened Pandora's box and set a precedent," said Ilyse Hogue, president of NARAL Pro-Choice America.
On the flip side, The Heritage Foundation, saw the decision as a victory for religious freedom. "Today's decision rejects the administration's argument that Americans' religious freedom ends when they open a family business," wrote Sarah Torre and Elizabeth Slattery on the .
The Tenth Circuit Court of Appeals in Denver ruled in June 2013 that Hobby Lobby should be given the opportunity to show its religious beliefs would be violated by either complying with the law or being forced to pay large fines.
Hobby Lobby faced penalties amounting to $1.3 million a day starting in the summer of 2013 if it didn't provide FDA-approved contraceptive methods in its self-insured health plans, which cover 13,000 employees. But a court issued an injunction in July that prevented the penalty from taking effect.
A rule from HHS finalized last summer exempted churches and other nonprofit religious organizations that object to contraceptive coverage. But private businesses such as Hobby Lobby weren't exempt.
Also today, the Supreme Court ruled that some publicly employed healthcare workers don’t have to pay union agency fees.
UPDATE: This article, originally published on June 30 at 10:18 EDT, was updated with new material at 19:12 EDT.