Supreme Court backs employers' right to opt out of contraception coverage

WASHINGTON — In a major test of the reach of the Affordable Care Act, the U.S. Supreme Court ruled, 5-4, that closely held businesses with religious objections are permitted to opt out of a federal requirement to provide employees insurance coverage for birth control.

The ruling Monday was a cause celebre for the religious right, and the decision leaves the Obama administration looking for another way to provide no-cost contraception under the Affordable Care Act in cases when employers object to coverage.

The evangelical Christian owners of the national craft store chain Hobby Lobby and the Mennonite cabinet-makers who own Conestoga Wood Specialties in Lancaster County brought the case.

“This is a big win for freedom in a diverse and pluralistic society,” said Hobby Lobby attorney Mark Rienzi. “The court confirmed that Americans don’t give up their religious freedom when they open a family business.”

Advocates for women’s reproductive rights, meanwhile, decried the decision. Cecile Richards, president of the Planned Parenthood Action Fund, called the decision “stunning” and “dangerous.” She said it allows bosses to make health care decisions for their female employees.


Justice Samuel Alito, who delivered the court’s opinion Monday morning, said the government can still compel contraceptive coverage, as long as it doesn’t compel religious objectors to pay for it.

He reasoned that the government already has accommodated religious nonprofits that object to the birth-control mandate. In those cases, rather than the nonprofit paying for the coverage, the insurance company absorbs the cost, and the government later is reimbursed through credits toward fees owed under other provisions of the Affordable Care Act.

The Department of Health and Human Services “provided no reason the same system cannot be made available when owners of for-profit corporations have the same religious objections,” Justice Alito said. He said another option would be for government to provide coverage directly.

Justice Ruth Bader Ginsberg, in remarks from the bench, said businesses are very different from religious organizations that exist primarily to foster the interests of people of the same faith. She said they should not be treated the same.

“Working for Hobby Lobby or Conestoga should not deprive employees holding different beliefs of the employer-insured preventative care available to workers at the shop next door,” she said.

On Monday, the White House said it would work with Congress to ensure women whom the decision affected still would have contraception coverage available.

“President Obama believes strongly in the freedom of religion. That’s why we’ve taken steps to ensure that no religious institution will have to pay or provide for contraceptive coverage, but we believe that the owners of for-profit companies should not be able to assert their personal religious views to deny their employees federally mandated benefits,” White House press secretary Josh Earnest said.

The court’‍s majority disagreed.

Chief Justice Roberts and Justices Antonin Scalia and Clarence Thomas joined the majority; Justice Anthony Kennedy filed a concurring opinion. Justices Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor dissented.

Justice Alito was careful to specify that the court’s opinion concerns only the contraceptive mandate and should not be used to shield employers from other Affordable Care Act provisions that conflict with their religious beliefs.

Still, the decision’s critics said it opens the floodgates to opt-outs for other medical procedures because of religious objections to blood transfusions, vaccinations, anti-depressants or medications derived from pigs, for example.

“What of the employer whose religious faith teaches that it is sinful to employ a single woman without her father’s consent, or married women without [their] husbands’ consent?” Justice Ginsburg asked.

During a conference call Monday afternoon, Mr. Rienzi said those scenarios are unlikely and that, even if they did, the government could more easily come up with a compelling public reason to mandate emergency blood transfusions than emergency contraception.

Louise Melling, deputy legal director of the American Civil Liberties Union, disagrees.

“Somehow contraception is different from other forms of health care,” said Ms. Melling, who vehemently criticized the decision.

The Green family, evangelical Christians who own Hobby Lobby, and the Hahn family, Mennonites who own Conestoga Wood Specialties, object to providing four of the 16 forms of birth control that the Affordable Care Act requires to be available for free to women employees. They include emergency contraception commonly known as the morning-after pill and intrauterine devices that prevent embryos from implanting in uteruses.

Because their religions say life begins at conception, the Greens and Hahns equate the two methods to abortion. They argued that requiring them to provide them would violate the 1993 Religious Freedom Restoration Act, which prohibits the government from restricting the exercise of religion unless doing so furthers a very important public interest that cannot be achieved in a less restrictive way.

Marcia Greenberger, co-president of the National Women’s Laws Center, faulted the court for accepting the religious belief that emergency contraception causes abortion even when the medical community disagrees.

Mr. Rienzi said the decision has implications for Catholics and others who object to other types of birth control, or all types, that the Affordable Care Act mandates.

The opinion doesn’t turn on which particular methods employers objected to but on the idea that the government mandate didn’t serve enough of a public purpose to justify violating employers’ religious beliefs.

Ilyse Hogue, president of NARAL Pro-Choice America, characterized the decision as a blow to women. “We are looking for Congress to right this wrong. We cannot trust the courts,” Ms. Hogue said.

She will have the support of Senate Majority Leader Harry Reid, D-Nevada, who blasted the decision in a statement Monday and pledged to legislate a fix.

“Employers have no business intruding in the private health care decisions women make with their doctors,” he said. “If the Supreme Court will not protect women’s access to health care, then Democrats will.”

Sen. Dick Durbin, D-Ill., promised to introduce legislation requiring corporations using Monday’s decision to deny or limit contraception coverage to disclose the policy to all employees and job applicants.

“Workers have a right to know if their employers are restricting the availability of a full range of family planning coverage,” Mr. Durbin said in a statement decrying the decision.

“Women and their families should be allowed to make this critical personal and private decision and not be subject to a for-profit employer’s personal religious beliefs,” he wrote.

Republican lawmakers celebrated the decision as a victory for religious freedom.

At the White House, Mr. Earnest said the administration would respect the court’s decision but would “look for ways to improve Americans’ health by helping women have more, not less, say over the personal health decisions that affect them and their families.”

Contraception is one of many preventative care services required to be covered under the 2010 Affordable Care Act.

Conestoga Wood Specialties is based in Lancaster County and employs 950 people. Oklahoma-based Hobby Lobby has 600 craft stores with about 15,000 full-time employees.

Matt Nussbaum contributed. Washington Bureau Chief Tracie Mauriello: 703-996-9292, tmauriello@post-gazette.como or on Twitter @pgPoliTweets. First Published June 30, 2014 12:00 AM

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