Hobby Lobby Déjà Vu at the Supreme Court

The new Supreme Court term starts today, and sometime this fall the court will consider whether to hear challenges to the Affordable Care Act’s requirement that health insurance provide coverage for contraception without a co-pay.

Wait — didn’t that already happen, you ask?

Yes, it did. Last summer, the Supreme Court dealt a blow to women’s rights when it held that Hobby Lobby had the right to deny contraception coverage to its female employees because doing so would have contradicted its owners’ religious beliefs.

In deciding Hobby Lobby, the court relied on the fact that the government had already developed a religious “accommodation” for certain employers that still ensured that employees could get contraception coverage. This accommodation — then in place for religiously affiliated nonprofit organizations — allows an employer to send a form to its insurance company or the federal government stating that the employer has a religious objection to covering contraception. Then, the insurance company works directly with the employee to provide her the coverage she needs. In other words, all the objecting employer has to do is raise its hand and say, “I object!” and the insurance company takes care of everything else.

In July, the Obama administration extended the accommodation to closely held for-profit companies, like Hobby Lobby, that have a religious objection to providing contraception coverage. 

Now it’s time for Part 2 of the legal saga: challenges to that very accommodation.  

Several religiously affiliated employers sued over the accommodation because they refuse to even fill out the form. The government isn’t telepathic. It has to know when an employer is going to “opt out.” And that’s why the two-page form is necessary.

If you’re scratching your head, you’re not alone. Eight federal appeals courts have considered the cases so far. Seven of them also scratched their collective heads and concluded that filling out a form isn’t a substantial burden on religious beliefs. As one of those courts put it, “The regulatory requirement that [employers] use a sheet of paper to signal their wish to opt out is not a burden that any precedent allows us to characterize as substantial.” Only one court has reached the opposite conclusion.

If the court strikes down the accommodation, there will be no insurance coverage for contraception for women who work at Hobby Lobby, Notre Dame, Domino’s Farms, Eden Foods, and the many other employers that brought lawsuits against the contraception rule. Limiting women’s access to contraception coverage is sex discrimination. Women already pay more for health care than men. And contraception is crucial for women's equal participation in society. Being able to decide whether and when to have children has a direct effect on women's ability to make their own paths in terms of their schooling, their careers, and their families. Religious liberty is a fundamental value and one that we fight for here at the ACLU. But religious freedom doesn't give employers the right to discriminate against their female employees. 

It is likely that the Supreme Court takes one of these cases, especially given that the federal government has now agreed that the court should step in. And if that happens, we will weigh in, just like we did when the court took the Hobby Lobby case. But we hope this isn’t Hobby Lobby déjà vu all over again: We hope that the court gets it right this time.

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Insurance companies might not be allowed to turn you down for coverage, but there is no law saying they have to pay even if you do. Medicare for all ages was never considered. With a government competitor, maybe all this fear over birth control and abortions might not be an issue. Birth control pills can help female problems like endometriosis. Maybe these theofascists don't understand that birth control pills can help improve women's health and it has nothing to do with a sexual partner. All the problems with the sick and disabled and some people still are more concerned with profits from potential future customers who have not yet been conceived. Does it ever occur to the anti-choice crowd that they may be murdering the unborn fowl when they eat an egg?


I'm not 100% sure it's fair to say that "the Obama administration extended the accommodation" when it took a Supreme Court ruling that altered the reading of the RFRA to become so expansive that the only defense they offered against accusations that everything is now "religious activity" was a somewhat bland "nuh-uh, because reasons". The administration's sole action was to issue new rules in compliance with the Hobby Lobby ruling.

I do agree, though, that attempting to challenge even the positive opt-out requirement is heinous, and truly sheds light one something I've been saying for quite some time: even under the ACA, your employer can make (or attempt to make) choices that negatively impact the actual standard you can receive. I've worked for an employer that "dumped" our insurance policies to the cheapest thing on the market, leaving many of its employees with only clinics to go to for anything other than primary care (in my case, my PCP was also a clinic). My fiancee's employer, on the other hand, is *trying* to offer compliant insurance, but because he's too lazy to check cost-benefit ratios and too stodgy to simply become a SHOP employer, the insurance he offers is barely on the cusp of "affordable" for her alone, when she would otherwise qualify for a subsidized plan that would cover both herself and her son for the same price. Stranger still, even without a subsidy (thanks, Governor, for refusing the Medicaid expansion!) I can get a plan with better coverage for a lower premium directly through the marketplace. I thought the point of employer-subsidized health insurance was to provide a net benefit to the employee, not to cause them to get less benefit for more cost and lock them out of the ability to make the "choice" so many free-market types crow about.


Here is a little prognostication. 5 to 4 the government loses. Kennedy will join the conservatives. Just as he should.


How can you make a case for sex discrimination? No type of contraception coverage is given to males so there is no bias against a particular gender.
I believe women should have the coverage. I strongly disagreed with the Hobby Lobby decision. I agreed with the government's argument that the corporation could not have religious beliefs. That's why I quit shopping at Hobby Lobby after the decision and we used to shop there regularly.


Every time I hear about your organization in the news it's always attacking my civil liberties. Well I am out to attack you now, get ready!


In 31 states ENGLISH is the official language, what about your state??????????? If so STOP using SPANISH IN YOU BLOG!


Actually, there is no official language (decided by the federal government) in the United States of America. Its interesting, while American English is the 'de facto" standard language (ie used the most), each state has seen fit to decide for themselves their state official languages. A cool fact is that Alaska actually has over 20 official state languages!

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