Supreme Court Hears Arguments on Contraceptive Coverage

March 25, 2014 Updated: March 25, 2014

The Supreme Court is considering whether for-profit companies have religious rights. Almost 50 businesses have sued over being required to pay for birth control for employees covered by their insurance. It’s part of the Affordable Care Act requirement that insurance must cover preventive care with no cost sharing.

Sebelius v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Sebelius will be argued before the court on March 25. The justices usually issue their decision months after hearing a case.

Churches and other religiously affiliated nonprofits are already exempt from the requirement. 

The owners of some private companies say their religious beliefs would be violated if they paid for their employee’s contraceptives. The owners of Oklahoma-based craft store chain Hobby Lobby are evangelical Christians who have argued that certain kinds of contraception are tantamount to abortion. The Green family, who owns Hobby Lobby, says their “religious beliefs prohibit them from providing health coverage for contraceptive drugs and devices that end human life after conception.”

Yet one argument for offering contraception with no cost sharing is that it prevents abortions. Limiting methods of contraception that are covered or requiring insured patients to pay out of pocket for contraception could lead to unintended pregnancies, according to one expert.

“Companies should not be able, for reasons related to the religious beliefs of their owners, to block access to guaranteed health insurance coverage that pays for the most effective forms of treatment,” said Sara Rosenbaum, JD, the Harold and Jane Hirsh professor of Health Law and Policy at the Milken Institute School of Public Health at George Washington University, in a statement.

Contraceptives Not Interchangeable

Rosenbaum wrote a friend of the court brief supporting the administration’s side in the case.

“Methods of contraception differ dramatically in their effectiveness in preventing unintended pregnancy; methods are not interchangeable medically, or in terms of their appropriateness or ease of use for a given woman at a given point in her life; and cost is a substantial barrier to women’s ability to choose and use the best method for them based on their individual circumstances and health needs,” she wrote. She is also a member of the Guttmacher Institute board of directors. The Guttmacher Institute is a nonprofit devoted to reproductive health.

The administration says 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 point to research showing that nearly one-third 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.

Health Insurance Gap

“Women already have an income gap. If these companies prevail, they’ll have a health insurance gap, too,” said Marcia Greenberger, co-president of the National Women’s Law Center.

The government also argues that employers would be able to invoke religious objections under the 1993 Religious Freedom Restoration Act to opt out of other laws, including those governing immunizations, minimum wages, and Social Security taxes. The Supreme Court previously has rejected some of these claims in cases decided before the law’s enactment.

The issue is largely confined to family-controlled businesses with a small number of shareholders.

A survey by the Kaiser Family Foundation found 85 percent of large American companies already offered such coverage before the health care law required it. There are separate lawsuits challenging the contraception provision from religiously affiliated hospitals, colleges, and charities.

The federal appeals court in Denver ruled in favor of Hobby Lobby. Conestoga Wood lost its case at the federal appeals court in Philadelphia.

Hobby Lobby and Corporate Responsibility

In many respects, Hobby Lobby is the sort of company Obama would be pointing to as he advocates for corporate responsibility and a higher minimum wage.

Hobby Lobby’s base pay for full-time employees is almost twice the federal minimum wage of $7.25 an hour. Employees are offered health insurance, dental coverage, and a retirement savings plan. Hobby Lobby stores close most nights at 8 p.m., which the company says is aimed at allowing employees to spend more time with their families.

The Greens say they have no desire to make health-care decisions for their employees, but neither do they want to contribute to services to which they object.

The Associated Press contributed to this report.