Court: Re­li­gious rights trump birth con­trol rule

The Standard Journal - - State & National - By MARK SHER­MAN

WASH­ING­TON (AP) — A sharply di­vided Supreme Court ruled Mon­day that some com­pa­nies with re­li­gious ob­jec­tions can avoid the con­tra­cep­tives re­quire­ment in Pres­i­dent Barack Obama’s health care over­haul, the first time the high court has de­clared that businesses can hold re­li­gious views un­der federal law.

The jus­tices’ 5-4 de­ci­sion, split­ting con­ser­va­tives and lib­er­als, means the Obama ad­min­is­tra­tion must search for a dif­fer­ent way of pro­vid­ing free con­tra­cep­tion to women who are cov­ered un­der the health in­sur­ance plans of ob­ject­ing com­pa­nies.

Jus­tice Sa­muel Al­ito wrote in his ma­jor­ity opin­ion, over a dis­sent from the four lib­eral jus­tices, that forc­ing com­pa­nies to pay for meth­ods of women’s con­tra­cep­tion to which they ob­ject vi­o­lates the 1993 Re­li­gious Free­dom Restora­tion Act. He said the rul­ing is limited and there are ways for the ad­min­is­tra­tion to en­sure women get the birth con­trol they want.

But White House press sec­re­tary Josh Earnest said the de­ci­sion cre­ates health risks for women, and he said Congress should take ac­tion to make sure they get cov­er­age.

“Pres­i­dent Obama be­lieves that women should make per­sonal health care de­ci­sions for them­selves rather than their bosses de­cid­ing for them,” Earnest said. “To­day’s de­ci­sion jeop­ar­dizes the health of the women who are em­ployed by these com­pa­nies.”

Con­tra­cep­tion is among a range of pre­ven­tive ser­vices that must be pro­vided at no ex­tra charge un­der the health care law that Obama signed in 2010.

Two years ago, Chief Jus­tice John Roberts cast the piv­otal Supreme Court vote that saved the law in the midst of Obama’s cam­paign for re-elec­tion. On Mon­day, Roberts sided with the four jus­tices who would have struck down the law in its en­tirety, hold­ing in fa­vor of the re­li­gious rights of closely held cor­po­ra­tions, like the Ok­la­homa-based Hobby Lobby chain of arts-and-craft stores that chal­lenged the con­tra­cep­tives pro­vi­sion.

Hobby Lobby is among roughly 50 businesses that have sued over cov­er­ing con­tra­cep­tives. Some, like the two in­volved in the Supreme Court case, are will­ing to cover most meth­ods of con­tra­cep­tion, as long as they can ex­clude drugs or de­vices that the govern­ment says may work af­ter an egg has been fer­til­ized.

But Mon­day’s rul­ing would ap­ply more broadly to other com­pa­nies that do not want to pay for any of the 20 birth con­trol meth­ods and de­vices that have been ap­proved by federal reg­u­la­tors.

Al­ito said the de­ci­sion is limited to con­tra­cep­tives. “Our de­ci­sion should not be un­der­stood to hold that an in­sur­ance-cov­er­age man­date must nec­es­sar­ily fall if it con­flicts with an em­ployer’s re­li­gious be­liefs,” he said.

He sug­gested two ways the ad­min­is­tra­tion could deal with the birth con­trol is­sue. The govern­ment could sim­ply pay for preg­nancy preven­tion, he said. Or it could pro­vide the same kind of ac­com­mo­da­tion it has made avail­able to re­li­gious-ori­ented, not-for­profit cor­po­ra­tions.

Those groups can tell the govern­ment that pro­vid­ing the cov­er­age vi­o­lates their re­li­gious be­liefs. At that point, cre­at­ing a buf­fer, their in­surer or a third-party ad­min­is­tra­tor takes on the re­spon­si­bil­ity of pay­ing for the birth con­trol. The em­ployer does not have to ar­range the cov­er­age or pay for it. In­sur­ers get re­im­bursed by the govern­ment through cred­its against fees owed un­der other pro­vi­sions of the health care law.

That ac­com­mo­da­tion is the sub­ject of sep­a­rate le­gal chal­lenges, and the court said Mon­day that profit-seek­ing com­pa­nies could not as­sert re­li­gious claims in such a sit­u­a­tion.

Jus­tice Anthony Kennedy, who was part of the ma­jor­ity, also wrote separately to say the ad­min­is­tra­tion can solve its prob­lem eas­ily. “The ac­com­mo­da­tion works by re­quir­ing in­sur­ance com­pa­nies to cover, with­out cost shar­ing, con­tra­cep­tion cov­er­age for fe­male em­ploy­ees who wish it,” Kennedy said. He said that ar­range­ment “does not im­pinge on the plain­tiffs’ re­li­gious be­liefs.”

Houses of wor­ship and other re­li­gious in­sti­tu­tions whose pri­mary pur­pose is to spread the faith are ex­empt from the re­quire­ment to of­fer birth con­trol.

In a dis­sent she read aloud from the bench, Jus­tice Ruth Bader Gins­burg called the de­ci­sion “po­ten­tially sweep­ing” be­cause it min­i­mizes the govern­ment’s in­ter­est in uni­form com­pli­ance with laws af­fect­ing the workplace. “And it dis­counts the dis­ad­van­tages re­li­gion-based optouts im­pose on oth­ers, in par­tic­u­lar, em­ploy­ees who do not share their em­ployer’s re­li­gious be­liefs,” Gins­burg said.

Lead­ers of women’s rights groups blasted the de­ci­sion by “five male jus­tices,” in the words of Ce­cile Richards, pres­i­dent of the Planned Par­ent­hood Ac­tion Fund.

The ad­min­is­tra­tion said a vic­tory for the com­pa­nies would pre­vent women who work for them from mak­ing de­ci­sions about birth con­trol based on what’s best for their health, not whether they can af­ford it. The govern­ment’s sup­port­ers pointed to re­search show­ing that nearly onethird of women would change their con­tra­cep­tive if cost were not an is­sue; a very ef­fec­tive means of birth con­trol, the in­trauter­ine de­vice, can cost up to $1,000.

The con­tra­cep­tives at is­sue be­fore the court were the emer­gency con­tra­cep­tives Plan B and ella, and two IUDs.

A sur­vey by the Kaiser Fam­ily Foun­da­tion found 85 per­cent of large Amer­i­can em­ploy- ers al­ready had of­fered such cov­er­age be­fore the health care law re­quired it.

Most work­ing women will prob­a­bly see no im­pact from the rul­ing, cor­po­rate health ben­e­fits con­sul­tants ex­pect. Pub­licly traded com­pa­nies are un­likely to in­ject re­li­gion into their em­ployee ben­e­fit plans, said Mark Hol­loway, di­rec­tor of com­pli­ance ser­vices at the Lock­ton Com­pa­nies, an in­sur­ance bro­ker that serves medium-sized and grow­ing em­ploy­ers.

“Most em­ploy­ers view health in­sur­ance as a tool to at­tract and re­tain em­ploy­ees,” said Hol­loway. “Women em­ploy­ees want ac­cess to con­tra­cep­tive cov­er­age, and most em­ploy­ers don’t have a prob­lem pro­vid­ing that cov­er­age. It is typ­i­cally not a high­cost item.”

It is un­clear how many women po­ten­tially are af­fected by the high court rul­ing. Hobby Lobby is by far the largest em­ployer of any com­pany that has gone to court to fight the birth con­trol pro­vi­sion.

The com­pany has more than 15,000 full- time em­ploy­ees in more than 600 crafts stores in 41 states. Hobby Lobby is owned by the fam­ily of David Green, evan­gel­i­cal Chris­tians who also own Mardel, a Chris­tian book­store chain.

The other com­pany is Con­estoga Wood Spe­cial­ties Corp. of East Earl, Penn­syl­va­nia, owned by a Men­non­ite fam­ily and em­ploy­ing 950 people in mak­ing wood cab­i­nets.

(AP Photo/Pablo Martinez Monsivais)

Demon­stra­tors em­brace as they re­act to hear­ing the Supreme Court’s de­ci­sion on the Hobby Lobby case out­side the Supreme Court in Wash­ing­ton, Mon­day, June 30, 2014. The Supreme Court says cor­po­ra­tions can hold re­li­gious ob­jec­tions that al­low them to opt...

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