SCOTUS Rules In Favor Of Hobby Lobby In Burwell v. Hobby Lobby Stores

SCOTUS: Closely Held Corporations With Religious Objections Can Opt Out Of Employer-Based Contraceptive Coverage. On June 30, the U.S. Supreme Court ruled 5-4 in the Burwell v. Hobby Lobby case, allowing Hobby Lobby the right to deny female employees access to four types of contraception they objected to -- Plan B, Ella, and two forms of an intrauterine device (IUD) -- on religious grounds, based on the scientifically inaccurate belief that these forms of contraceptives are “abortifacients.” This ruling may effectively allow the owners of closely-held for-profit companies with religious objections to opt out of all forms of contraception coverage originally mandated under Obamacare. [Politico, 6/30/14]

Hobby Lobby Objected To Providing Insurance That Covered Emergency Contraception And IUDs. Hobby Lobby won on the argument that the insurance it provides employees should not have to cover some IUDs and emergency contraception. From TIME:

The privately-owned corporation Hobby Lobby, an Oklahoma-based craft store with self-described Christian values, argued that they too should not have to cover certain emergency contraception because of their religious beliefs. The company objected to paying for emergency contraception including Plan B, Ella--both commonly known as the morning after pill--plus two types of IUDs. Hobby Lobby said they believe these types of birth control amount to abortion. The company did not object to covering other types of contraception, including birth control pills. [TIME, 7/1/14]

Right-Wing Media Claim Hobby Lobby Ruling Did Not Limit Access To Contraception, Citing Generic Birth Control Pills

Weekly Standard Dismissed Critique Of Court Ruling: Hobby Lobby “Will Continue To Cover Contraception Under Its Insurance Plan.” In a June 30 post for The Weekly Standard, John McCormack attacked Hillary Clinton's critique of the Supreme Court decision, pointing to 16 other forms of contraception the company allegedly offers and the availability of generic birth control pills at Target:

Contrary to Clinton's assertion Hobby Lobby's owner “doesn't think [women] should be using contraception,” the family-owned business covers the entire cost of 16 out of 20 FDA-approved contraceptives under its insurance plan. The company's owners simply objected to covering pills or devices that may cause the death of a human embryo.

[...]

Following the Court's ruling, Hobby Lobby, like almost all employers in the United States, will continue to cover contraception under its insurance plan. The federal government will also continue to spend hundreds of millions of dollars each year providing contraception to poor and low-income women through Medicaid and the Title X program.

Although Clinton, who commands a $225,000 speaking fee, claimed that contraception is “pretty expensive,” a month's supply of birth control pills may be purchased at Target for as little as $9 per month. [The Weekly Standard, 6/30/14]

Rush Limbaugh: Birth Control Is “Widely Available” And “Dirt Cheap, No Matter Where You Want To Get It.” Conservative radio host Rush Limbaugh responded to the Hobby Lobby decision by proclaiming that despite the ruling, birth control would remain “widely available” for “dirt cheap, no matter where you want to get it” (emphasis added):

LIMBAUGH: Despite what many on the left are saying today, despite what you're probably going to hear from a lot of people on the left, birth control is not what was banned by the Supreme Court. That's not what was on the docket, so to speak. In the Hobby Lobby case, narrow though it may be, the Supreme Court, by 5-4 majority decision, defended liberty. And it should be noted that even after this decision, birth control remains widely available. It is dirt cheap, no matter where you want to go get it. [Premiere Radio Networks, The Rush Limbaugh Show, 6/30/14]

Fox News' Laura Ingraham: Women Can Go To Planned Parenthood Or Anywhere Else To Get “Abortifacients” Not Covered By Hobby Lobby. During the July 1 edition of Fox & Friends, conservative radio host and Fox News contributor Laura Ingraham claimed that women can “go to Planned Parenthood” or “anywhere else” to get contraception, so it is “ridiculous” to argue that access to them had been restricted by this court ruling (emphasis added):

INGRAHAM: OK, so these women who decide on their own to work for these closely-held public companies, like Hobby Lobby and a few other plaintiffs in this case, that they are now not considered real people because they're not able to get abortifacient drugs from Hobby Lobby's insurance, when they can go to Planned Parenthood, by the way we as taxpayers give Planned Parenthood $500 million a year. They can go to Planned Parenthood, they can go anywhere else. They can get their own policy. The government can also pay for it, which is probably what's going to happen. The idea that there is no way for these women to get the very small class of abortifacient drugs and other contraceptives that Hobby Lobby on sincere religious grounds believe violates their conscience is ridiculous. [Fox News, Fox & Friends, 7/1/14]

Wall Street Journal: Women “Will Still Be Able To Buy Birth Control For As Little As $9 A Month.” The Wall Street Journal editorial board brushed off the gravity of the ruling by arguing that women could still buy birth control for $9, claiming that the outrage against the ruling was “political overkill”:

Declining to force someone to pay for something is not the same as “banning” it. Women who work for the small number of religiously oriented businesses will still be able to buy birth control for as little as $9 a month.

This political overkill suggests that Democrats are secretly delighted by the ruling, which they hope to use to scare women to the polls and salvage their shaky midterm prospects. Yet the real liberal grievance isn't with the Supreme Court but with RFRA itself. If Democrats are as upset as they claim, they ought to campaign this fall to repeal RFRA and be honest about how little they care about religious liberty. [The Wall Street Journal, 6/30/14] 

Hobby Lobby Did Limit Contraception Access: Generic Birth Control Pills Don't Suit All Women's Needs

Birth Control “Is Not One-Size-Fits-All”

There Are Dozens Of Contraception Methods, As “Birth Control Is Not One-Size-Fits-All.” As Planned Parenthood noted, there are dozens of contraception methods tailored to fit individual women's bodies and particular needs, and only a woman and her doctor can decide what's best for that woman. A generic birth control pill may not work for all women, as “birth control is not one-size-fits-all.” [Planned Parenthood, accessed 7/01/14]

Association Of Reproductive Health Professionals: “Important To Find The Birth Control Method That Best Fits” Individual Needs. The Association of Reproductive Health Professionals emphasized that women need to work with their doctors to determine what birth control method is the best fit, noting that it could be a specific brand of birth control pill, IUD, shot, vaginal ring, or patch, among other methods. [Association of Reproductive Health Professionals, accessed 7/1/14]

Experts Say Access To Full Range Of Contraception Options Like IUDs “Critical” To Reproductive Health

Guttmacher Report: “Access To Full Range Of Options” Like IUDs “Is Critical To Reducing Unintended Pregnancy And Improving Reproductive Health.” A 2010 report on IUDs by a senior epidemiologist for Family Health International, the Guttmacher Institute, and an OB-GYN professor at the University of New Mexico emphasized that access to IUDs and the “full range” of contraception options is “critical” to improving women's health in the U.S.:

In recent years, intrauterine contraception has become an increasingly important option for pregnancy prevention in the United States; today, more than two million women use it. Many factors have contributed to renewed interest in intrauterine contraception, including modernization of products and improved attitudes, training, access, and awareness.

[...]

Unintended pregnancy in the United States is a stubborn problem. Approximately 48% of women experiencing unintended pregnancies report that they used contraception in the month that the pregnancy occurred. The decision to use any method is a personal one, and depends on many factors. However, intrauterine contraception is in the top tier of contraceptive effectiveness and provides better protection from unintended pregnancy than many alternatives. In the United States, where most men and women initiate sexual activity in their teens and do not plan to have children until their mid- to late twenties, the fertile period before childbearing can be as long as that after childbearing. In this context, universal access to the full range of options and a true choice of family planning methods, including intrauterine contraception, is critical to reducing unintended pregnancy and improving reproductive health in the U.S. [Renewed Interest in Intrauterine Contraception in the United States: Evidence and Explanation, 9/7/10]

Implants Like IUDs, Which Hobby Lobby Refuses To Cover, Are The Most Effective Reversible Form Of Contraception

American College of Obstetricians And Gynecologists: Implants And IUDs Are "The Most Effective Reversible Contraceptives Available." According to a June 2011 press release from the American College of Obstetricians and Gynecologists, IUDs are the “most effective reversible contraceptives available”:

Long-acting reversible contraceptive (LARC) methods--namely intrauterine devices (IUDs) and implants--are the most effective forms of reversible contraception available and are safe for use by almost all reproductive-age women, according to a Practice Bulletin released today by The American College of Obstetricians and Gynecologists (The College). The new recommendations offer guidance to ob-gyns in selecting appropriate candidates for LARCs and managing clinical issues that may arise with their use.

“LARC methods are the best tool we have to fight against unintended pregnancies, which currently account for 49% of US pregnancies each year,” said Eve Espey, MD, MPH, who helped develop the new Practice Bulletin. “The major advantage is that after insertion, LARCs work without having to do anything else. There's no maintenance required.”

More than half of women who have an unplanned pregnancy were using contraception. The majority of unintended pregnancies among contraceptive users occur because of inconsistent or incorrect contraceptive use. LARCs have the highest continuation rates of all reversible contraceptives, a key factor in contraceptive success.

IUDs and contraceptive implants must be inserted in a doctor's office. [American College of Obstetricians and Gynecologists, 6/20/11]

And More Companies Could Begin Dropping Contraception Coverage After Hobby Lobby Ruling

Over Eighty Companies Have Already Filed Lawsuits To Drop Contraception Coverage. On June 30 the Daily Beast reported that at least eighty other companies have filed lawsuits against the health care law's contraception mandate, and could be the next Hobby Lobby:

Monday's Supreme Court decision in favor of the company and Conestoga Wood of Pennsylvania for refusing to pay for contraception in health insurance affects far more than the 15,000 employees between them. The Supreme Court's decision allows closely held companies (corporations with more than 50 percent of stock owned by five or fewer individuals) to opt out of the Affordable Care Act's contraception mandate. There are at least 80 other companies fighting to be the next Hobby Lobby.

[...]

More than 50 for-profit companies and 59 non-profits have been [sic] filed lawsuits against the ACA's contraception mandate. The majority of these rulings were stayed by courts pending the resolution of Hobby Lobby's case.

“After SCOTUS issued this decision, lower courts will apply that decision to these cases that they've been holding,” said Borchelt.

Those that don't immediately get approval may simply move forward without it. [Daily Beast, 6/30/14]

Closely Held Corporations, Like Hobby Lobby, Employ 52 Percent Of Workforce. Research conducted by Columbia University found that closely-held corporations, now eligible to drop employer-sponsored health care coverage of contraception, “produce 51 percent of the private sector output and employ 52 percent of the labor force.” [Columbia University, October 2009]

Ninety Percent Of Companies In U.S. Are Defined As “Closely Held.” According to Slate, closely held corporations “are thought to make up around 90 percent of companies in the U.S.” :

The Supreme Court's ruling in the Hobby Lobby case exempts “closely held corporations” from providing insurance coverage of contraception if such provisions violate the company owners' religious beliefs. How many people could the decision affect? That depends mainly on how many people are employed by corporations considered to be “closely held.”

The IRS defines a closely held corporation as one that, in general, has “more than 50 percent of the value of its outstanding stock owned (directly or indirectly) by five or fewer individuals at any time during the last half of the tax year” and “is not a personal service corporation.” These corporations are thought to make up around 90 percent of companies in the U.S. Many are small businesses, but large operations such as Koch Industries can also be closely held--a fact Nancy Pelosi cited in her statement denouncing the decision. Hobby Lobby has 572 stores across the country. [Slate, 6/30/14]  

Ruling Also Raises Cost Of Some Contraception, And Cost Is A Primary Barrier To Access

Many Women Will Now Pay For Contraception In Addition To Insurance Costs

Women Already Pay For Contraception Coverage In Employer-Sponsored Insurance Plans. Despite the chorus of claims to the contrary by conservative media, the Affordable Care Act's contraception requirement did not in fact make contraception free. As ThinkProgress noted, women pay for those benefits through by “working at their job and paying a monthly premium” (emphasis added):

One of the most common misconceptions about Obamacare's contraceptive provision is the assumption that women are now getting birth control “for free.” In reality, however, these women are accessing birth control through their private, employer-sponsored health insurance plans. Women do pay for the benefits included in those plans, both by working at their job and by paying a monthly premium. Under Obamacare, the difference is that they don't have to pay an additional out-of-pocket cost for the preventative health benefits specific to their gender. [ThinkProgress, 5/7/14]

NARAL's Ilyse Hogue: Many Women Will Now “Double Pay” For Contraceptive Coverage. Appearing on the June 30 edition of CNN's Newsroom With Carol Costello, NARAL Pro-Choice America President Ilyse Hogue responded to the recent Hobby Lobby ruling in an interview with justice correspondent Pamela Brown. Hogue noted that the decision will impact “tens of thousands of women” who will now have to “double pay” for contraception that their employer-sponsored health plans will no longer cover (emphasis added): 

BROWN: How do you feel this will impact women?

HOGUE: I think immediately, tens of thousands of women who are employees of these companies will either be out of their birth control or will absolutely have to double pay, because we already pay. And that adds up at the end of the month. That adds up for these hourly wage women. But I think the more disturbing precedent that was set today was when five male judges said this discrimination against women is not considered discrimination, and I think the application of that as we move forward is going to be be very frightening. [CNN, Newsroom With Carol Costello, 6/30/14]

High Cost Of Contraceptives Are A Primary Barrier To Access

CAP: High Costs Of Contraceptives Have Forced More Than Half Of Young Adult Women To Stop, Delay, Or Not Use Their Preferred Method As Directed. A 2012 Center for American Progress study explained that high costs “are one of the primary barriers to contraceptive access,” and that “more than half of young adult women say they have not used their method as directed because it was cost-prohibitive”:

High costs have forced many women to stop or delay using their preferred method, while others have chosen to depend on less effective methods that are the most affordable.

·         Surveys show that nearly one in four women with household incomes of less than $75,000 have put off a doctor's visit for birth control to save money in the past year.

·         Twenty-nine percent of women report that they have tried to save money by using their method inconsistently.

·         More than half of young adult women say they have not used their method as directed because it was cost-prohibitive. [Center For American Progress, 2/15/12]

More Effective Contraceptives Can Cost “The Equivalent Of Month's Salary For A Full-Time Minimum-Wage Worker.” Walter Dellinger, co-author of an amicus brief filed in the Hobby Lobby case on behalf of the Guttmacher Institute, explained in a Washington Post opinion piece how the argument that many women already use contraception ignores how some of the more effective forms of contraception are often far more expensive (emphasis added): 

The cases being heard on Tuesday also implicate equality of access to effective methods of family planning. At issue are challenges to the Affordable Care Act's requirement that health insurance policies cover without cost to the patient all methods of birth control for women approved by the Food and Drug Administration. An exemption is being sought by directors of for-profit corporations who hold a religious belief that they would be complicit in sin if the health insurance policies provided to their employees included coverage of birth control methods the bosses consider immoral.

Some of the arguments exhibit the same conflation of methods of contraception that afflicted the Griswold argument a half-century ago. The cabinet manufacturer Conestoga Wood has argued, for example, that because “89% of women who are at risk of unintended pregnancy are already using contraception,” denying insurance coverage would be no significant imposition on employees.

This argument fails to account for the fact that some methods of contraception are far more costly and far more effective than others. The hormonal intrauterine device (IUD), for instance, is 45 times more effective than oral contraceptives and 90 times more effective than male condoms in preventing pregnancy based on typical use. Initial use of implants or IUDs can cost the equivalent of month's salary for a full-time minimum-wage worker. It is not surprising that one-third of women questioned in a national survey in 2004 said they would change their method of contraception if cost were not a factor. [The Washington Post, 3/23/14]