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IU experts comment on Supreme Court's contraceptive coverage ruling in favor of Hobby Lobby

June 30, 2014


BLOOMINGTON, Ind. -- The U.S. Supreme Court ruled today that family-owned businesses can't be required by the Affordable Care Act to provide employees with health care coverage for certain contraceptive services. Indiana University experts offer their comments. They address the following themes:

A 'blockbuster' decision

The decision, in a challenge brought by Hobby Lobby and Conestoga Wood Products, is "a blockbuster ruling," said Daniel Conkle, a constitutional law and First Amendment expert at the IU Maurer School of Law in Bloomington.

"The Supreme Court for the first time extends religious liberty rights to profit-making corporations, and it makes it clear that such rights cannot easily be overcome," Conkle said. "Even so, the court’s opinion is limited to closely held as opposed to publicly traded corporations and is confined to the ACA’s contraceptive mandate."

Conkle said the court's reasoning may actually make it more difficult for nonprofit religious organizations, including religious colleges, to object to the Obama administration’s existing Affordable Care Act accommodation for them. The University of Notre Dame and other Catholic organizations have challenged the law, arguing that its accommodation of their objections to contraceptive coverage doesn't go far enough.

"More generally," Conkle said, "any future claims for religious exemptions will require their own analysis under the Religious Freedom Restoration Act, which requires context-specific, case-by-case balancing of religious liberty against the government’s competing interests."

Conkle is the Robert H. McKinney Professor of Law at the Maurer School. He can be reached at 812-855-4331 or Top

Mandate likely has increased access to contraception

The court's decision complicates the already difficult task of evaluating the impact of the Affordable Care Act's contraceptive mandate on women's health coverage. But it's a safe assumption, based on previous studies and standard economic theory, that the law has already increased contraceptive use, said Kosali Simon, a health policy expert at the IU School of Public and Environmental Affairs.

Simon and a research assistant are trying to pull together a variety of data that will help quantify the impact of the mandate. But they estimate it has had a significant effect on the basis of previous research on the correlation between lower costs and increased use of contraceptives -- coupled with a report that average out-of-pocket cost for contraception decreased by 58 percent from 2012 to 2014.

"We are in the process of testing this hypothesis using proprietary data," Simon said.

Simon noted that the contraceptive coverage mandate under the Affordable Care Act wasn't fully implemented until January 2014, so federal data may not be available for a time. And previous research isn't always definitive. An expansion of family planning services covered by Medicaid led to increased contraceptive use among adult women. One study found state mandates for contraceptive coverage increased their use among teens; but another study found state mandates did not have an effect.

She said other questions will also have an impact on the effectiveness of the mandate:

  • How many employers will take advantage of the "conscience" exemption the court created?
  • How many employees will be affected by the exemption?
  • How will the Department of Health and Human Services audit and enforce the requirement that contraceptive coverage be provided at zero cost to patients?
  • What effect will the Hobby Lobby decision have on other religious-based challenges to the law?

To speak with Simon, contact Steve Hinnefeld at 812-856-3488 or Top

Comments during oral arguments foreshadowed decision

Questions and comments made by Supreme Court justices at oral argument -- especially those of Justice Anthony Kennedy -- foreshadowed today's Hobby Lobby win, said Beth Cate, a legal expert at the IU School of Public and Environmental Affairs.

"It seemed clear in March that the government had failed to persuade the five 'conservative' justices that federal law allowed nonprofit corporations, unincorporated associations and individuals to assert religious exemptions to complying with the law, but did not allow for-profit corporations to do so," she said.

Cate said it's notable that the court majority did not cite as precedent its own Citizens United decision, which said corporations have a First Amendment right to donate to political causes -- although its reasoning, "that granting rights to corporations protects the rights of the individuals comprising or associated with the corporations, certainly echoes the majority's reasoning in Citizens United. "

The decision suggested the government could extend the exception to contraceptive coverage that it created for nonprofit organizations to businesses like Hobby Lobby. One might think that language would "spell doom" for organizations challenging the requirement for nonprofits, such as the University of Notre Dame, Cate said.

"But Justice Kennedy seemed to leave room for such challenges," she said.

Whether today's decision has opened the floodgates to more "religious exemption" litigation remains to be seen, she said. Both Justice Samuel Alito's opinion for the majority and Kennedy's concurrence stress the ability of the government to show in the future that it cannot similarly accommodate other religious objections, for cost reasons or otherwise, citing as examples religious objections to covering vaccinations or serving racial minorities. But the opinion provides little guidance on how the court would assess a government claim that paying for something a religious employer objects to is too expensive.

Cate noted that the decision used the example of race discrimination, not discrimination based on sexual orientation, as an example of religious-based noncompliance that wouldn't pass muster.

"The indirect effect of today's ruling on debates as to whether state laws or the First Amendment will allow for-profit companies to refuse services to homosexuals -- usually, so far, in connection with same sex marriages -- will play out in coming weeks and months," she said.

Cate can be reached at 812-855-0563 or Top

Decision may fuel move to amend Constitution

Jennifer Drobac, professor of law at the IU McKinney School of Law in Indianapolis, noted that the court majority stressed the limited nature of its decision, commenting that this case dealt only with for-profit, closely held corporations.

"The majority dismissed concerns expressed by one dissenter that this decision might apply to publicly traded companies and allow for-profit corporations to opt out of any law that they found incompatible with their sincerely held religious beliefs," Drobac said.

"However, in treating corporations as 'persons,' the court reinforced the personification of corporations found in other recent court decisions such as Citizens United, which recognized a First Amendment right of corporations to make political campaign contributions," she said.

Drobac said the Hobby Lobby decision "may lead to increased interest in a constitutional amendment to abolish corporate personhood, a move that would strip corporations of constitutional protections typically applied to human beings."

Drobac's professional expertise includes employment law and discrimination. She can be reached at 317-278-7563 or Top

Access to contraception, health care benefits men and families, too

Debby Herbenick, co-director of the Center for Sexual Health Promotion at the Indiana University School of Public Health-Bloomington, said access to health care, including reproductive health care, benefits not only women, but men and families. Most women in the U.S. and their male partners, including most religious women and their male partners, use some form of contraceptives, but costs and reliability vary.

"As noted in the dissenting opinion, IUDs can cost significant amounts of money and yet are long-lasting, safe and effective forms of contraception that an increasing number of women and men choose to help plan their families. Birth control pills are particularly common," said Herbenick, who also is a sexuality educator at The Kinsey Institute. "And yet many women and men, often due to lack of sexuality education or money or insurance for contraceptives, don't use reliable methods of birth control and may find themselves needing emergency contraception. About half of pregnancies in the U.S. are unplanned, and nearly one-third of women have had or will have an abortion in their lifetime.

"We need to increase access not only to sexuality education but also to reproductive health care and contraception, including emergency contraception, in order to most effectively help women and men plan their families. Women and their partners may find themselves taking today's ruling into consideration when they consider not only where they want to work, but where they want to shop."

To speak with Herbenick, an associate research scientist in the School of Public Health's Department of Applied Health Science, contact Tracy James at 812-855-0084 or traljame@iu.eduTop

Court's decision 'immensely wrongheaded'

Sheila Suess Kennedy, professor of law and public policy in the School of Public and Environmental Affairs at Indiana University-Purdue University Indianapolis, refers to the Supreme Court’s decision as "immensely wrongheaded" in a blog post, "The real problem with the Hobby Lobby Decision."

"We could point to the hypocrisy of an owner who buys lots of merchandise from China, with its mandatory abortion/one child policy, but whose religious sensibilities recoil from offering birth control to female employees who want it," Kennedy wrote.

"We could note that, thanks to the Administration’s willingness to accommodate religious paternalism, the costs of coverage didn’t even come out of the corporate pocket -- the insurers paid it. How does that 'burden' the corporation?

"We could certainly consider how this decision fits into the broader backlash against equal rights for women that has characterized American politics for the past decade."

Kennedy's scholarly publications include seven books and numerous law review and journal articles. She is a columnist for the Indianapolis Business Journal and a frequent lecturer, public speaker and contributor to popular periodicals. To arrange an interview with Kennedy, contact Diane Brown, 317-274-2195. Top