Guttmacher Institute on Hobby Lobby Case: “After Supreme Court Ruling, Focus Shifts to How Obama Administration and Congress Will Ensure Contraceptive Coverage for Affected Employees”

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The Guttmacher Institute has issued a statement on the Hobby Lobby case.  Here is an excerpt:

[D]espite its potentially limited impact, the decision is very troubling for multiple reasons. Chief among them is the fact that five Supreme Court justices singled out contraception as a health service against which private companies may discriminate. More than 99% of women aged 15–44 who have ever had sexual intercourse have used at least one contraceptive method.

As far as finding a less restrictive means to ensuring coverage, the Court suggested that employees of companies that reject covering contraceptives could come under the umbrella of an existing accommodation for a broad range of nonprofit organizations (such as universities, hospitals or social relief agencies) that object to contraception on religious grounds. The Obama administration last year set up a mechanism so that employees of such organizations will have seamless coverage of contraceptive services without out-of-pocket costs. (A narrow group of religious employers closely tied to houses of worship are exempt entirely.)

Under this accommodation, coverage is arranged through a third-party insurer or administrator and, as the administration puts it, “an eligible organization need not contract, arrange, pay or refer for contraceptive coverage” to which they object on religious grounds. The Court’s majority opinion indicated that such a mechanism would not violate the beliefs expressed in these cases by the for-profit employers that challenged the requirement. However, this accommodation—as applied to nonprofits—is itself subject to numerous court challenges, one or more of which will likely be heard by the Court during its next term.

The Obama administration has not yet indicated what specific actions it might take in response to the Court’s ruling, but it has stated that it “will work with Congress to make sure that any women affected by this decision will still have the same coverage of vital health services as everyone else.” The administration could take the Court’s suggestion and expand the existing accommodation to closely held for-profit corporations that assert a religious objection to some or all contraceptive services and methods. Congress, too, could act through new legislation to protect employees and their family members from their employers’ objections.

It is noteworthy that, given the opportunity to do so, the Court’s conservative majority did not reject the premise that the government has a compelling interest to promote contraceptive access, instead stating that for purposes of argument, “we assume the HHS regulations satisfy this requirement.” Indeed, in an impassioned dissent, Justice Ruth Bader Ginsburg—citing the Guttmacher Institute’s amicus brief —made it clear that the government’s case for the contraceptive coverage policy is very strong. Decades of scientific evidence and the life experiences of millions of women show that contraception enables women to prevent unintended pregnancies and to plan and space wanted pregnancies. That, in turn, has numerous health benefits for mothers and babies and promotes women’s educational, economic and social advancement.

Read the full statement here.

-Bridget Crawford

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