Questions remain on contraception coverage after ruling

By Jayne O’Donnell and Kaitlyn Krasselt| comments | Print this pagePrint | Email this pageShare
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(RNS) After the Supreme Court’s decision Monday (June 30) in favor of a company that objected to covering contraceptives it found morally objectionable, questions arose:

Did the decision apply only to those forms the company believed caused abortions — such as intrauterine devices and morning-after pills — but not common birth control pills or condoms? Or did it apply to all forms?

Tuesday, the justices offered some clues: They declined to review three other cases won by plaintiffs who objected to covering all forms, and they sent three similar cases in which plaintiffs lost back to the lower courts to reconsider.

Still, observers remain divided over just how broadly Monday’s decision in the case brought by crafts retailer Hobby Lobby and cabinet maker Conestoga Wood Specialties should be read and whether it could also apply to businesses that aren’t closely held like the crafts retailer, in which five or fewer people own 50 percent or more of the company.

Robert Charrow, an appellate lawyer with Greenberg Traurig, said that even though the Hobby Lobby decision was limited to closely held companies and four specific types of contraceptives, it could easily be applied more broadly to all contraceptives through other court cases.

“But the broader the position you take, the more difficult it is to say it’s rationally related to religious beliefs,” he said.

Cecile Richards, president of the Planned Parenthood Action Fund, already sees the decision in the broadest possible terms.

“While Hobby Lobby itself claims to object to four forms of birth control, the court’s ruling is not limited to those forms — and some companies will use this ruling to deny their employees coverage for any type of birth control,” Richards said in an e-mailed statement.

The National Women’s Law Center is following all lawsuits that challenge the Affordable Care Act’s birth control coverage mandate. Before the Hobby Lobby decision, 50 lawsuits had been filed by for-profit companies and 48 were pending in the courts. In addition, 59 nonprofit organizations had filed similar suits, but several were dropped when the administration provided an accommodation for nonprofit organizations with religious objections to the benefit. The accommodation allows third-party insurance administrators to provide the coverage. However, 36 cases are still pending for nonprofit organizations that are not satisfied with this accommodation.

In its decision, the high court pointed to this solution, which includes federal reimbursement for the insurance administrators.

But Bloomberg reported Wednesday that some of these companies say they aren’t getting reimbursed by the government. The Self-Insurance Institute of America says that if the government can’t figure out a way to reimburse administrators that aren’t owned by insurance companies, these independent benefits administrators may ultimately drop clients with religious objections.

That could complicate an issue already mired in confusion and questions. For example, which companies will seek exemptions now from the ACA mandate, and for what types of birth control? How will they justify it? Much of that will be left for the lower courts to sort out.

That, and the starkly contradictory positions on each side.

“The simple principle is that the government has no business telling a family business that they have to subsidize something they find morally objectionable and the Supreme Court affirmed that,” said Greg Scott, spokesman for the Alliance Defending Freedom, which represented Conestoga Wood Specialties.

Deborah Senn, who teaches insurance and health care law at Loyola University School of Law, disagrees. While she was Washington state’s insurance commissioner in the 1990s, Senn said, she worked on “conscience clauses” for Catholic hospitals that didn’t want to perform abortions. That trend will accelerate now, she predicts: “The universe that will not do abortions or dispense birth control will expand exponentially.”

(Jayne O’Donnell and Kaitlyn Krasselt write for USA Today, as does Richard Wolf, who contributed to this report.)