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Effect of Supreme Court’s contraception ruling on employees could be limited, two experts say

  • The Wichita Eagle
  • Published Monday, June 30, 2014, at 8:38 p.m.
  • Updated Tuesday, July 1, 2014, at 7:24 a.m.

Photos

Supreme Court Rules in Favor of Hobby Lobby

Supreme Court says employers with religious objections can refuse to pay for contraception. (June 30)

A conservative Wichita business owner cheered Monday’s ruling by the U.S. Supreme Court that allows closely held private companies to avoid paying for some contraceptives for their employees.

However, some experts on employment law thought the impact on employees would be relatively minor, even though a number of key questions remain unanswered.

Under the Affordable Care Act, often called Obamacare, private employers are required to pay for 20 different kinds of contraceptives – at no cost to the employee – or face penalties.

The owners of Oklahoma City-based craft chain Hobby Lobby and another company challenged the law as a violation of their religious freedom.

In a 5-4 decision released Monday, the court majority ruled that the Obama administration failed to prove that Hobby Lobby’s responsibilities to its workers under the Affordable Care Act trumped the company’s right to not violate its deeply held beliefs under the 1993 Religious Freedom Restoration Act.

The 1993 law sought to establish the standard that the government couldn’t place a burden on the exercise of a person’s religion unless the government’s need was compelling and the means used were the least restrictive possible.

The court specified on Monday that the ruling applied only to private companies that are owned by one person or just a few people – called a “closely held” company – where company policy reflects the owners’ beliefs. Large publicly-traded companies are not included.

The methods of contraception that Hobby Lobby objected to include “morning after” pills and the IUD. They work primarily by preventing sperm from fertilizing an egg, but can also prevent fertilized eggs from implanting in the womb. The company contended those forms of contraception are, in effect, an abortion.

The ruling is seen as more of a symbolic victory or defeat, rather than striking at the heart of Obamacare.

The contraception mandate became a much-lauded provision for the law’s supporters, who pointed to it as evidence that the Affordable Care Act was particularly good for women. They hailed the law as an antidote for years of inequality, with women routinely paying more than men for their health care and insurance.

On Friday, the Obama administration touted new figures showing that the number of women who filed prescriptions for oral contraceptives with no co-pay increased from 1.2 million in 2012 to an estimated 31 million in 2013, which officials attributed in part to the Affordable Care Act.

On Monday, Walter Berry, president of Wichita’s the Berry Cos. and someone who has talked often of his strong Christian faith, said he welcomed the court’s decision.

“I’m pleased with the ruling,” he said “I wish it weren’t a split decision.

“The First Amendment is designed to protect the freedom of religion and should prevent people from having to pay for things they don’t believe in.”

He said doesn’t think the ruling will affect his company because it self insures, rather than using a health insurer. Self insurers are allowed more flexibility, and Berry Cos. already does not cover birth control its ownership objects to, he said.

Julie Burkhart, founder of Wichita’s South Wind Women’s Center, which provides abortions among its services, said she was saddened that the rights of employers triumphed over those of their employees.

“Having this case decided on that premise is frightening,” she said. “At Hobby Lobby there are something like 14,000 people who work for that company and the court said, ‘OK, because you are a closely held company owned by a family you’re allowed to place your religious beliefs above these people that you happen to employ.’ ”

In reality, women working at these companies generally won’t notice much of a difference in benefits because of the ruling, said Brad Schlozman, an attorney with the Hinkle Law Firm.

While the ruling does block the contraceptive mandate for closely held private companies, he expects the Obama administration to create an “accommodation” for those employees similar to the one that it created for the employees of religious nonprofit groups, such as Catholic hospitals. The government requires the nonprofit group’s health insurer – or, if self insured, the health plan administrator – to pay for the banned contraception methods.

He expects the employees of these businesses to notice no difference. The contraception services will still be free; only who pays for it will change.

“It’s a nothing burger in terms of actual impact,” Schlozman said.

Karen Vines, vice president for insurance brokerage IMA, said the decision appeared fairly narrow and shouldn’t mean big changes for their clients.

She said, though, that IMA works with a lot of religious nonprofits that are – through the “accommodation” – indirectly providing contraceptive services to female employees, and they don’t like it.

“There’s still some friction there,’” she said.

For one, Berry said he would not be satisfied with an “accommodation” in which his insurance administrator paid for his employees’ contraceptive services.

“If you have a deeply held religious belief against those methods, you would be against them no matter who paid,” he said. “And, if it’s your resources being used, even though there is a slight of hand, that feels wrong.”

Contributing: Washington Post

Reach Dan Voorhis at 316-268-6577 or dvoorhis@wichitaeagle.com. Follow him on Twitter: @danvoorhis.

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