Not sure what to make of the Hobby Lobby Case? Join the crowd. We have been inundated in the past weeks with interpretations of the decision. Here are just a few:
Nancy Pelosi – “…five men could get down to specifics of whether a woman should use a diaphragm and she should pay for it herself or her boss.”
NBC News – “Employers Do Not Have To Cover Birth Control”
Josh Earnest (White House Press Secretary) – “Today’s decision jeopardizes the health of women that are employed by these companies”
In fact, none of these are true unless it later turns out that female health ultimately boils down to four forms of birth control. Count me doubtful.
Rachel Van Nortwick-Barlotta of Baker Donelson writing for JD Supra lays out four myths regarding the decision that are important to understand. Here is an excerpt from her piece:
1. Any employer that does not want to provide contraceptive coverage to its employees is free to ignore the ACA regulation mandating that certain forms of birth control be provided at no cost to its employees. This is false. The Court’s decision was extremely narrow. It applies only to closely held companies. The Court specifically noted that it would be unlikely that a publicly traded company would or could successfully assert the objections raised by Hobby Lobby.
2. The Hobby Lobby decision changes the contraceptive coverage requirements for all employers. This is false. The decision only impacts ACA-covered, closely held companies with bona fide religious beliefs. Companies with 50 employers or less are not required to provide health insurance at all under the ACA. The Court noted that roughly 84 million of 154 million employees who have insurance coverage under employer-sponsored health care plans fall into these latter categories and thus were not covered by the contraceptive mandate even before the Hobby Lobby decision.
3. The Hobby Lobby decision likely paves the way for employers to avoid other parts of the ACA. This is false. The Court cautioned that its decision was concerned “solely” with the contraceptive mandate and that it “should not be understood to hold that insurance-coverage mandate must necessarily fail if it conflicts with an employer’s religious beliefs.” As an example, the Court pointed to immunization as an area in which a religious objection may very well fail as there may be no less restrictive means to preventing the spread of infectious diseases.
4. The Hobby Lobby decision is likely the final word on whether or not all employers will be required to provide no-cost contraceptive coverage to employees in the future. This is likely untrue. The Supreme Court’s decision was based upon a federal statute instead of constitutional grounds. Senate Democrats have already proposed legislation to bar for-profit corporations from seeking exemptions from the ACA’s mandate that their health plans cover contraception costs.
I agree with Alan Dershowitz of Harvard School of Law that this ruling is exceedingly narrow and ultimately will have very little impact.