The Fight for Women's Health Post-Hobby Lobby

When I joined the National Health Law Program as its new executive director, I knew to expect challenges. After all, our mission -- securing health care rights for those in need -- is a challenging one, perhaps never more so than now. The Affordable Care Act offers great hope for the tens of thousands of Americans who have been living with no or inadequate health insurance. Unfortunately, it also has generated political gamesmanship, with the most recent fallout harming women across the country.

The Supreme Court's disastrous decision in Burwell v. Hobby Lobby Stores, Inc., is an example of the latter.

The decision that closely-held corporations can "exercise religion" under the Religious Freedom Restoration Act (RFRA) to deny female employees access to basic health care -- birth control -- is wrong in its holding and its implications. Starting with Justice Ginsburg's dissent, commentators have criticized the decision for blurring the line that corporate law is supposed to create between an individual and a business entity.

This does not begin to touch on the Court's willingness to ignore contemporary science and its complacency in the face of the unequal treatment of women. Religious beliefs are not a license to discriminate, nor to make health care decisions for someone else.

But our focus right now is on minimizing the damage created by the Hobby Lobby decision.

The damage is not just a "woman's problem." The Court's reasoning opened a Pandora's Box of issues at the intersection of employment and health. Closely-held corporations employ a staggering 52 percent of the U.S. workforce. Under the Court's reasoning, an employer could refuse to cover other standard, modern medical treatments on religious grounds. For example, the Affordable Care Act requires all plans to offer vaccinations. But certain religious groups object to vaccinations, either because they have a problem with the vaccine ingredients or the diseases they are meant to prevent. Could an employer refuse to cover vaccinations? Or deny its employees coverage of drugs intended to treat HIV/AIDS?

The immediate challenge, in the aftermath of the Court's ruling, is to address the health needs of women affected and potentially affected by the decision. Nearly 100 employers have pending suits similar to Hobby Lobby, and many more could exercise their newly-declared "religious rights," leaving potentially millions of women without easy access to contraception.

Complicating matters is an order from the Supreme Court just days after the Hobby Lobby decision. In Hobby Lobby, the Court suggested that even without employer coverage, women could still access contraception through other means. For example, the justices noted, the Administration has already made arrangements for such accommodations in the case of non-profit organizations that hold themselves out as religious. All they have to do is fill out a brief form telling the insurer that they have a religious objection to covering contraception, and the insurer will provide coverage to the employees independent of the employer's plan. In fact, the availability of this accommodation seemed to be a deciding factor for certain justices.

Except: Two days later, the Court told Wheaton College, a religious university, that it didn't have to fill out the form if it had a religious objection to it, thus potentially denying Wheaton's female employees (and the employees of other organizations eligible for the accommodation) any access to contraception coverage at all. Ironically, this would now mean that the women would have to pay for the coverage out of pocket, which of course would come from their salary, paid by Wheaton College.

So, filling out a form might not violate the religious beliefs of for-profit companies, but it does violate the beliefs of non-profit institutions? If you are outraged and waiting for the other shoe to drop, the female justices agree with you.

Congress can fix this problem if it passes the Not My Boss's Business Bill and makes clear that RFRA cannot be used to deny employees health or other benefits on the basis of their bosses' religious views, but House Republicans have already made clear that passage will be difficult. While we are waiting for Congress, the Obama Administration should move forward to make the "accommodation" available to for-profit companies that read Hobby Lobby as their license to deny essential health coverage to their employees. There are lots of well-founded concerns about whether and how the accommodation will work, including lack of monitoring, lack of transparency, and unknown cost for the self-insureds, but the Administration needs to make it a priority and make it work effectively, and the process must be transparent so the public can tell whether it's working. If it doesn't work, Justice Kennedy and others on the Court need to know that they are not deciding "from whom" women will receive contraceptive coverage, but "whether" they will receive it at all.

There is some good news in all of this. Because the Supreme Court's decision was based on its interpretation of a fairly narrow federal statute, the Hobby Lobby case did not supersede state law. For women living in the 28 states that already required insurers to cover contraception drugs and devices -- laws that were unremarkable until the ACA politicized the issue -- many of them will still be entitled to coverage for contraceptives, although they will lose the ACA's critical cost sharing protections, a significant factor for many low-income women.

For women in the other 22 states, the future is more uncertain, and their options are limited. They can advocate for a state or federal legislative response to Hobby Lobby; California is doing that now. They can petition closely-held companies in their state to continue to cover contraception services and protest those that don't.

Or they can wait for the Supreme Court to join the 21st century and recognize that contraception is basic health care.