On the Hobby Lobby: Your Boss’s Business?

This post also appears on Policy Prescriptions.

The Affordable Care Act (ACA) seeks both to expand insurance coverage as well as to ensure that offered plans include substantive benefits, including coverage of preventative services, so that Americans have access to necessary preventative care such as screening colonoscopies and mammograms. One provision that has publicly come under attack is Section 2713 of the Public Health Service Act which includes contraceptive services as a necessary preventative service with first-dollar coverage – no cost-sharing such as copayments or coinsurance will apply, and insurers will have to cover contraceptives fully whether or not the enrollee has hit their deductible. 

Religious groups who sponsor health plans, including affiliated schools and hospitals, are generally exempt from the requirement. In those cases, the insurer is required to pay for the coverage, which tends to save the insurer money, as prenatal and childbirth care is pretty expensive but birth control is not.

Opposition from some religious groups focuses on the first amendment religious freedom of the employers, arguing that without an exemption for religiously affiliated employers and schools, the “mandate even forces individuals and groups with religious or moral objections to purchase and provide [contraceptive] coverage if they are to receive or provide health coverage at all.”[1]

In Hobby Lobby, the Supreme Court recently addressed the same question but with a different group: a for-profit company, whose owners object to certain kinds of birth control on the basis that they consider them abortions (even though most scientists agree that they are not).

The question is whether a requirement to provide insurance that covers services that employers object to on religious grounds violates their right to exercise their religion.

However, the mandated coverage would not force any individual or group to partake in an activity they have a moral objection to. Rather, the mandate would compel employers who offer health coverage to their employees to include first-dollar contraceptive coverage for the employees in that coverage. The question at issue here pits the employer’s right of free exercise of religion against the employee’s rights to health coverage and fair compensation.

Those with religious objections to contraception are not compelled by law to engage in commerce, healthcare, or education. Even after the shared responsibility payments (a.k.a. “employer mandate” to provide health insurance) go into effect in 2014 2015 2016 employers are not compelled to offer insurance to their employees; there are simply penalties under certain conditions, which happen to be cheaper than providing insurance.Regardless, those with religious objections to contraception are not compelled to employ others or offer group insurance plans. If they choose to, then (before Hobby Lobby) they must follow the regulations that all employers must follow, particularly when it is not the employer who is engaging in any activity they may find objectionable.

In Hobby Lobby, the Supreme Court ruled that "closely held" private, for-profit enterprises can be exempted from such a requirement if it violates their religious beliefs. It's unclear exactly which companies would be included as "closely held"; IRS definitions include those where a group of 5 or fewer close individuals own and operate over 50% of the company. This probably would include Walmart.

I think my view on the issue is best captured in the decision in one of the lower court rulings on the way to the Supreme Court. A contraceptive coverage mandate does not infringe on the employer’s free exercise rights because an employer will not be:

prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives…. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [their] plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise. [emphasis mine][2]

The key point here is that there are a number of steps between the actions required of the employer and the acts being carried out which they find objectionable.

Let's also consider what insurance really is. Employer sponsored health insurance in this instance is offered as a fringe benefit to an employee, i.e. it is a form of compensation. Would we allow an employer to give an employee a 10% raise, on the condition that the employee not spend it on contraceptives? That would almost certainly be considered religious discrimination in violation of the 1964 Civil Rights Act[3] in addition to being absurdly difficult for an employer to police.

Would we allow exemptions for other medical treatments that some religious groups find objectionable? Surely an employee of a Jehovah’s Witness would take issue if their group insurance plan did not cover blood transfusions (it would certainly make them reconsider driving to work). What about a Christian Scientist employer who was opposed to vaccine coverage for their workers and their workers’ children?

Mandating first-dollar coverage for contraceptive services across the board protects the rights of employers and students in group health plans. An employers’ right to exercise their religious beliefs ends when it infringes on their employees’ rights – and their compensation.

This post is adapted from a paper I wrote the course Health Services & Law I took in Spring 2013 as part of my MPH.

[1] Catholic Bishops Call Obamacare Mandate “Unprecedented Threat” to “Religious Freedom.” Sep 27, 2011. http://www.impeachobamacampaign.com/catholic-bishops-call-obamacare-mandate-unprecedented-threat-to-religious-freedom/

[2] O’Brien v. Health & Human Services  (2012 WL 4481208 (E.D.Mo.))

[3] Equal Employment Opportunity Commission. “Religious Discrimination.” http://www.eeoc.gov/laws/types/religion.cfm