By Emily DiVito
Campaign for America’s Future, July 1, 2014
Here is the clearest, and scariest, implication of the Supreme Court’s Monday ruling in Burwell v. Hobby Lobby, Inc.: The Patient Protection and Affordable Care Act – “Obamacare” – is fatally flawed. It is clear we now need a public, single-payer health care system – because the Supreme Court can no longer protect us.
The fact that Hobby Lobby Inc. actually had a legal standing to bring this case to court in order to contest providing comprehensive health care to their 18,000 employees should prove that a key feature of the Affordable Care Act is unsound: It relies too heavily on private entities to deliver a public good – health care.
The Hobby Lobby case was decided not under the constitutional rights guaranteed by the First Amendment, but under those dictated in the Religious Freedom Restoration Act of 1993, drafted to prevent laws that substantially burden a person’s free exercise of religion. Under that act, the government must prove that a law that hinders religious expression serves a “compelling state interest” and does so in the “least restrictive” way possible.
Justice Samuel Alito’s majority opinion concedes that the government has a “compelling state interest” in providing contraception, but claims the Affordable Care Act does not do so with the “least restrictive means” to achieve this end. Unacknowledged, however, is that there is almost no way to provide comprehensive birth control coverage in a minimally restrictive way to businesses without widening government jurisdiction over health care. If businesses will not pay for health insurance that covers contraception, then the government must.
This exposes the primary and unavoidable weakness of the ACA. Because it still requires that private companies enforce what should be considered public policy – health care – the ACA will always face potential legal contention with the personally held religious beliefs of employers.
Moreover, Hobby Lobby Inc., Conestoga Wood and Mardel were able to preserve legal standing before the court while completely ignoring science and reality. The Religious Freedom Restoration Act protects their religious liberty so thoroughly that all the Greens and the Hahns had to do was believe that the forms of birth control in question, including emergency contraceptives, caused abortions. But, they very obviously do not. The American College of Obstetrics and Gynecologists has maintained for years that “emergency contraception is not effective after implantation; therefore, it is not an abortifacient.”
Public policy needs to be based on empirical fact, not disproved or unproven beliefs. But we cannot do this until the American health care policy eliminates the role of private companies in administering public goods.
Intentionally or not, Justice Alito makes the case for an expansion of government control of health care. He maintains throughout his 49-page decision that the best way to ensure comprehensive birth control access under insurance plans “would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.”
Ironically, this represents a potential increase in the scope of the federal government that most conservatives would protest – and did protest when the ACA and the public option (in which the government would offer a publicly funded insurance plan as an alternative to private insurance) were up for debate four years ago.
Justice Alito’s offered solution to the newly formed coverage gap is the expansion of an ACA “accommodation” currently in place for religious nonprofits. Via an exemption to the ACA crafted by the Department of Health and Human Services, employees of these nonprofits are still eligible for contraceptive coverage through their existing insurance companies directly, and not through their religiously affiliated employer. Justice Alito maintains that “HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections [to contraception coverage].”
Interestingly, interest groups on both side of this debate rejected Alito’s alternative, albeit for completely different reasons.
Lori Windham, Senior Counsel for the Becket Fund for Religious Liberty and counsel for Hobby Lobby, maintains that the accommodation “fails to solve the moral problem created by the mandate for many religious organizations.”
Judy Waxman, Vice President for Health and Reproductive Rights at the National Women’s Law Center, said that expanding the existing accommodation would separate birth control from other health care drugs and services. “Birth control is a basic health service that almost all women in this country use for health care. And it is important that it be covered like every other service,” Waxman said.
President Obama seems to have taken note. When White House Press Secretary Josh Earnest was asked Monday afternoon if the administration was looking to expand the current ACA accommodation in place for religious nonprofits, Earnest simply said “no.” Instead, he affirmed that the ruling made clear “that there is an opportunity for Congress to take the kinds of steps that would mitigate this problem.”
Unfortunately for American women, congressional action is very unlikely to happen, even though there is plenty of fervor over the issue among Democrats. Senate Majority Leader Harry Reid (D-Nev.) took to the Senate floor Monday morning to declare “If the Supreme Court will not protect women’s access to health care, then Democrats will.”
There are various legislative solutions to the contraceptive coverage gap left by the decision, including giving the federal government the power and the funds to cover contraception specifically and amending the Religious Freedom Restoration Act. But none of these are considered viable options amidst the current congressional dissonance.
But something must be done. A single-payer public health care option should be reexamined to detach employer whims from public needs. We must minimize the influence of bosses and businesses in the implementation of health care. No one elected them.