The Supreme Court handed down a 5-4 ruling on the Burwell v. Hobby Lobby case Monday, allowing some for-profit companies to opt out of paying for certain contraceptives for their employees. Elena Marks, president and CEO of the Episcopal Health Foundation and Baker Institute Scholar in Health Policy, offered her insights on the ruling and how it will impact implementation of the Affordable Care Act, women’s access to reproductive care and future court cases.
What do you make of the reasoning of the majority opinion in Burwell v. Hobby Lobby?
The court’s opinion is based on its conclusion that the Religious Freedom Restoration Act of 1993 gives multi-million dollar, national, for-profit corporations the same constitutional right of religious freedom that historically has applied to human beings. This is similar to the court’s reasoning in the Citizens United case that concluded that corporations could spend unlimited amounts of money in political races without public accountability.
How will the Supreme Court’s ruling affect the implementation of the Affordable Care Act? Does the ruling alter the effectiveness of the ACA in any way?
The court suggested that the ACA’s accommodation to religious nonprofits should be made available to Hobby Lobby and its fellow plaintiffs. This allows a religious nonprofit that has objections to birth control to refuse to cover it, while ensuring that the nonprofit’s employees receive the coverage without cost-sharing directly from the insurance company. The way the accommodation works is that the insurance company retained by the business to provide or administer the health plan would include coverage for contraceptives without charging the cost of that benefit to the business. As a practical matter, including contraceptive coverage lowers the cost of health plans because of the comparative costs of paying for contraception versus prenatal care and delivery. If the accommodation is made available to religious for-profits, then the employees of these corporations will still have access to contraceptives through their insurance plans. This is likely a more complicated mechanism for achieving the result, but it may enable women employees to obtain the benefits the ACA intended for them.
What are the implications of the ruling in Texas, where many women’s clinics that offer subsidized birth control are closing due to legislation passed by Texas lawmakers in 2013?
There is no direct relationship; however, both are evidence of a backward trend toward the rights of women to access affordable reproductive care. From a public health perspective, this is a huge step backward that stands in stark contrast to the rest of the developed and developing world. The increasing difficulty faced by women, especially younger and poorer women, will translate into increased unintended pregnancies, with negative health and economic consequences that can last for generations.
How do you expect Congress or the Obama administration to respond to the Supreme Court’s ruling?
Congress is so deadlocked that it has been unwilling or unable to make any changes to the ACA, even when they agree on a needed change. I would expect the Obama administration to seek a reconsideration of the ruling, and if the ruling stands, I would expect they might offer the same accommodation offered to religious nonprofits.
In Justice Ruth Bader Ginsburg’s dissent, she mentioned Jehovah’s Witnesses’ objection to blood transfusions and Scientologists’ objection to antidepressants, among other examples of health care and religion being at odds. What effect will this ruling have on future court cases that concern both health policy and religious beliefs?
Despite the majority’s statement that this case is solely about contraceptives and not about other health services, there is nothing in their reasoning that distinguishes contraceptives services from immunizations, blood transfusions or antidepressants. One of the ironies of the majority opinion is that it actually argues in favor of a government-sponsored, single-payer plan, like Medicare, as a way around the mandate challenged by Hobby Lobby.
Elena M. Marks is the Baker Institute Scholar in Health Policy as well as president and CEO of the Episcopal Health Foundation. From 2004 through 2009, Marks served as the director of health and environmental policy for the City of Houston. Prior to joining the mayor’s staff, Marks practiced trial and appellate law; started and directed a successful legal placement business; and developed strategic, long range and operating plans for service lines and system centers at St. Luke’s Episcopal Health System.