News Religion

Hobby Lobby Files Suit Opposing Affordable Care Act Birth Control Benefit

Robin Marty

The retailer claims being forced to cover IUDs and emergency contraception violates their religious rights.  But what effect would the coverage have for their female employees?

Emergency contraception (EC) is contraception. It prevents pregnancy, and by definition does not cause abortions. But mischaracterizing EC as an abortifacient is just one of the excuses that craft store chain Hobby Lobby is using to oppose the birth control mandate in the Affordable Care Act, a rule that requires that all insurance plans offer coverage of all FDA-approved methods of contraception without a co pay, including both emergency contraception and sterilization.

The Oklahoma-based company isn’t the first non-religious entity to sue the administration over the new rule, but they have staked claim as the first non-Catholic based one.  “We hope that this lawsuit, on behalf of such a large and prominent evangelical Christian business, will draw attention to the fact that the government is trying to force people of all different faiths to violate their faith,” Becket Fund for Religious Liberty attorney Kyle Duncan told reporters during a conference call. “This is not by any means a Catholic-only issue. Some of the drugs involved in the mandate can cause an early abortion. And many Americans who are not Catholic have a problem with this.”

But expanding the opposition from extreme anti-choice Catholics to extreme anti-choice Catholics and Evangelical Christians isn’t the only ground this lawsuit is breaking.

According to the lawsuit:

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“The Green family’s religious beliefs forbid them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices….The administrative rule at issue in this case runs roughshod over the Green family’s religious beliefs, and the beliefs of millions of other Americans, by forcing them to provide health insurance coverage for abortion-inducing drugs and devices, as well as related education and counseling.”

The lawsuit specifically claims that Plan B, Ella, and IUDs “can prevent the implantation of a human embryo in the wall of the uterus, which constitutes an abortion,” despite scientific studies saying that the medications inhibit ovulation instead, and despite the fact that a pregnancy is not established unless and until an embryo successfuly implants in the lining of the uterus.

The company says that it pays 80 percent above the federal minimum wage, meaning an hourly employee would make approximately $13 an hour pre-tax. With a 40-hour work week, an employee would be earning roughly $520 a week, or $2100 a month before taxes. As many analyses have clearly shown, birth control is costly, especially for an hourly or low-wage worker and especially when factoring in related doctor’s visits and monthly recurring costs. Moreover, covering birth control is cost-effective: As with any prevention intervention, it is far less expensive to prevent an unwanted or unintended pregnancy through coverage of birth control. And finally, insurance policies that are part of a benefits package, just like retirement, vacation pay, or other elements of a benefits package are earned and therefore owned by the employee.

Company CEO David Green argues that not following the mandate would cost his company $1.3 million per day or a loss of their religious liberty should they be forced to comply. Currently, the chain is spending half of its annual profits to fund religious ministries at a rate of “hundreds of millions of dollars per year,” as Green reported to Shopping Business Center last May. This includes a $70 million “gift” to Oral Roberts University in 2007.

News Media

Study: Politicians Dominate Nightly News Reports on Birth Control

Nicole Knight

Study co-author Michelle H. Moniz, assistant professor of obstetrics and gynecology at the University of Michigan, noted that news segments largely framed contraception as a political issue, rather than a matter of public health.

When it comes to asking experts to weigh in on birth control, the nation’s three major TV networks favor political figures over doctors, according to a forthcoming paper in the journal Contraception.

Analyzing nightly news segments on contraception on ABC, CBS, and NBC between 2010 to 2014, the authors found that few broadcasts included medical professionals (11 percent) or health researchers (4 percent). Politicians, however, dominated coverage, appearing as sources 40 percent of the time, followed by advocates (25 percent), the general public (25 percent), and Catholic Church leaders (16 percent).

Sixty-nine percent of news segments on birth control included no medical information, the authors found.

Study co-author Michelle H. Moniz, assistant professor of obstetrics and gynecology at the University of Michigan, noted that news segments largely framed contraception as a political issue, rather than a matter of public health.

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“Health professionals are an untapped resource for ensuring that the most up-to-date, scientific information is available to the public watching the news,” Moniz said in an email to Rewire.

An estimated 24 million Americans watch nightly news, making it an “influential information source,” the authors note.

And although nearly half of pregnancies in the United States each year are unplanned, news segments did not emphasize highly effective contraception like IUDs, the researchers found. Instead, emergency contraception, commonly known as the morning-after pill, warranted the most coverage, at 18 percent, followed by the daily oral contraceptive pill, at 16 percent.

The researchers’ analysis of 116 nightly news segments coincided with the rollout of the Affordable Care Act by President Obama and continued through the June 2014 U.S. Supreme Court decision in Burwell v. Hobby Lobby, which carved out the right for private corporations to deny birth control coverage to employees on religious grounds.

“We found that when the network television media covers contraception,” the authors observed, “they do so within a largely political frame and emphasize the controversial aspects of contraception, while paying less attention to health aspects and content experts.”

The paper was authored by five researchers from the University of Michigan, Ann Arbor; the Veterans Affairs Center for Clinical Management and Research in Michigan; and the Pennsylvania Department of Health.

The study builds on earlier work exposing media bias and gender disparities in reproductive health coverage.

In June, an analysis of prime-time news programs on cable networks CNN, Fox News, and MSNBC by media watchdog group Media Matters for America found that 40 percent of guests on all three networks made anti-choice statements or identified as anti-choice, compared with 17 percent of guests who made pro-choice statements or identified as reproductive rights advocates. On Fox, guests made a total of 705 inaccurate statements about abortion care over a 14-month period.

The nightly news study follows a report earlier this year on gender disparities by the Women’s Media Center, a nonprofit advocacy group, indicating that male journalists dominate reproductive health coverage, with bylines on 67 percent of all presidential election stories related to abortion and contraception. Female journalists, in comparison, wrote 37 percent of articles about reproductive issues.

Commentary Law and Policy

Here’s What You Need to Know About Your Birth Control Access Post-Supreme Court Ruling

Bridgette Dunlap

Yes, the Zubik v. Burwell case challenged the Affordable Care Act's contraceptive coverage mandate. But that shouldn't stop you from getting your reproductive health needs met—without a co-payment.

In May, the Supreme Court issued a sort of non-decision in Zubik v. Burwell, the consolidated case challenging the Affordable Care Act’s mandate that employers provide contraceptive coverage. The ruling leaves some very important legal questions unanswered, but it is imperative that criticism of the Court for “punting” or leaving women in “limbo” not obscure the practical reality: that the vast majority of people with insurance are currently entitled to contraception without a co-payment—that includes people, for the most part, who work for religiously affiliated organizations.

Two years ago, hyperbole in response to the Court’s decision in Burwell v. Hobby Lobby—that, for example, the Court had ruled your boss can block your birth control—led too many people to believe the contraceptive coverage requirement was struck down. It wasn’t. The Zubik decision provides a good opportunity to make sure that is understood.

If people think they don’t have birth control coverage, they won’t use it. And if they don’t know what coverage is legally required, they won’t know when their plans are not in compliance with the law and overcharging them for contraceptives or other covered services, perhaps unintentionally. The point of the contraceptive coverage rule is to make it as easy as possible to access contraceptives—studies show seemingly small obstacles prevent consistent use of the most effective contraceptives. Eliminating financial barriers isn’t enough if informational ones undermine the goal.

The most important thing to know is that most health plans are currently required to cover reproductive health services without a co-payment, including:

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  • One version of every kind of FDA-approved contraception—that is, only the generic or the brand-name version of the contraceptive could be covered, but at least one must be. So you shouldn’t be paying a co-payment whether you use the pill, the patch, the shot, or want long-acting reversible contraception (LARC) like an IUD, which is more expensive, but most effective.
  • Screening for HIV and high-risk strains of HPV
  • An annual well-woman visit
  • Breastfeeding counseling and supplies like pumps

There are exceptions, but most plans should be covering these services without a co-payment. Don’t assume that because you work for Hobby Lobby or Notre Dame—or any other religiously affiliated employer—that you don’t currently have coverage.

The original contraceptive coverage rule had an “exemption” for church-type groups (on the somewhat dubious theory that such groups primarily employ individuals who would share their employers’ objection to contraception). When other kinds of organizations, which had religious affiliations but didn’t primarily employ individuals of that same religion, objected to providing contraceptive coverage, the Obama administration came up with a plan to accommodate them while still making sure women get contraceptive coverage.

This “accommodation” is a workaround that transfers the responsibility to provide contraceptive coverage from the employer to the insurance company. After the employer fills out a form noting it objects to providing contraception, the insurance company must reach out to the employee and provide separate coverage that the objecting organization doesn’t pay for or arrange.

This accommodation was originally available only to nonprofit organizations. But dozens of for-profits, like Hobby Lobby, sued under the Religious Freedom Restoration Act (RFRA)—arguing that their owners were religious people whose beliefs were also burdened by the company having to provide coverage.

The Hobby Lobby decision did not say your boss’s religious belief trumps your right to a quality health plan. What the Court did was point to the existence of the accommodation for nonprofits as proof that the government could achieve its goals of ensuring coverage of contraception through a workaround already in place to give greater protection to objectors. Basically, the Court told the government to give the for-profits the same treatment as the nonprofits.

The Hobby Lobby decision states explicitly that the effect of this on women should be “precisely zero.” The Obama administration subsequently amended the contraceptive regulations, making coverage available to employees of companies like Hobby Lobby available through the accommodation. Hobby Lobby added some headaches for administrators and patients, but it did not eliminate the contraceptive coverage rule.

Next, however, the nonprofits went on to argue to the Supreme Court and the public that the accommodation the Court had seemed to bless in Hobby Lobby also violated RFRA—because having to fill out a form, which notified the government that they objected to contraceptive coverage and identifying their insurers, would substantially burden their religious beliefs.

Following oral arguments in Zubik, the eight-member Supreme Court issued a highly unusual order: It asked the parties to respond to its proposed modification of the accommodation, in which the government would not require objecting nonprofits to self-certify that they oppose contraception nor to identify their insurers. The government would take an organization’s decision to contract for a health plan that does not cover contraception to be notice of a religious objection and go ahead with requiring the insurer to provide it instead.

The petitioners’ response to the Court’s proposed solution was “Yes, but…” They said the Court’s plan would be fine so long as the employee had to opt into the coverage, use a separate insurance card, and jump through various other hoops—defeating the goal of providing “seamless” contraceptive coverage through the accommodation.

When the Court issued its decision in Zubik, it ignored the “but.” It characterized the parties as being in agreement and sent the cases back to the lower courts to work out the compromise.

The Court told the government it could consider itself on notice of the petitioners’ objections and move forward with getting separate contraceptive coverage to the petitioners’ employees, through the accommodation process, but without the self-certification form. How the government will change the accommodation process, and whether it will satisfy the petitioners, are open questions. The case could end up back at the Supreme Court if the petitioners won’t compromise and one of the lower courts rules for them again. But for prospective patients, the main takeaway is that the Court ruled the government can move forward now with requiring petitioners’ insurers to provide the coverage that the petitioners won’t.

So—if your plan isn’t grandfathered, and you don’t work for a church or an organization that has sued the government, your insurance should be covering birth control without a co-payment. (If your plan is grandfathered and your employer makes a change to that plan, then those formerly grandfathered plans would be subject to the same contraceptive coverage requirements.) If you do work for one of the nonprofit petitioners, the government should be making contraceptive coverage available even before the litigation is resolved. And in some cases, employees of the petitioners already have coverage. Notre Dame, for example, initially accepted the accommodation before being pressured by off-campus contraception opponents to sue, so its insurer is currently providing Notre Dame students and employees coverage.

Don’t despair about the Supreme Court’s gutting access to contraception. Assume that you have coverage. The National Women’s Law Center has great resources here for finding out if your plan is required to cover contraception and how to address it with your insurance plan if it isn’t in compliance, and a hotline to call if you need help. The fact that equitable coverage of women’s health care is the new status quo is a very big deal that can be lost in the news about the unprecedented litigation campaign to block access to birth control and attacks on Obamacare more generally. Seriously, tell your friends.

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