Monthly Archives: November 2012

Court Ruling: Hobby Lobby Cannot Deny Contraceptive Coverage to its Employees

By Amal Bass, WLP Staff Attorney

On November 19, 2012, an Oklahoma federal court denied Hobby Lobby’s motion for a preliminary injunction, telling the business and its co-plaintiff (Mardel, another business owned by the same family trust) that they would be unlikely to succeed in their legal challenge to the contraceptive coverage rule under the Affordable Care Act (ACA).  This rule makes contraception more affordable for women by requiring new or renewed insurance to cover the cost without co-pays or deductibles as of August 1, 2012.

Religious organizations, like houses of worships, are exempt from providing such coverage, and the Obama Administration has proposed an “accommodation” for other religious organizations under certain circumstances.  Just yesterday, November 27, 2012, a Pennsylvania federal court dismissed a lawsuit by the Catholic Diocese of Pittsburgh, Catholic Charities, and Catholic Cemeteries Association as premature because, unlike Hobby Lobby, several exceptions to the contraceptive coverage rule apply to them at the present time either because they are religious organizations or have grandfathered plans.  Most v. Sebelius, No. 12-cv-00676, 2012 U.S. Dist. LEXIS 167737 (W.D. Pa. 2012).  Hobby Lobby, as a private, for-profit business, is in a different situation; it does not fit within the accommodation or exemptions.

In its lawsuit, Hobby Lobby and Mardel claimed that requiring contraceptive coverage in the health plans they offer to their employees violates their rights under the First Amendment of the U.S. Constitution and the Religious Freedom Restoration Act of 1993 (RFRA).  In particular, Hobby Lobby protested coverage for contraceptive methods that it wrongly believed to be abortifacients, such as Emergency Contraception (EC), which does not cause abortions because it works by preventing the ovary from releasing an egg, not by disturbing a fertilized egg implanted in the uterus.

The United States District Court for the Western District of Oklahoma ruled against Hobby Lobby and Mardel, concluding that the companies were not entitled to a preliminary injunction because:

Hobby Lobby and Mardel, [being] secular, for- profit corporations, do not have free exercise rights. The [owners] do have such rights, but are unlikely to prevail as to their constitutional claims because the preventive care coverage regulations they challenge are neutral laws of general applicability which are rationally related to a legitimate governmental objective.

Plaintiffs also have failed to demonstrate a probability of success on their Religious Freedom Restoration Act claims. Hobby Lobby and Mardel are not ‘persons’ for purposes of the RFRA and the Greens have not established that compliance with the preventive care coverage regulations would ‘substantially burden’ their religious exercise[.]

Essentially, the court concluded that, for the purposes of free exercise of religion, corporations are not people and do not have such rights.  Their owners have religious freedom rights, but broadly applicable, neutral laws like the ACA do not infringe on these constitutional or statutory rights.  Legal challenges waged by secular, for-profit businesses against the contraceptive coverage rule in other lower federal courts, however, have resulted in mixed results.

It is important that our federal courts protect the contraceptive coverage rule from attacks like the one at the heart of Hobby Lobby v. Sebelius.  Business owners should not be able to impose their personal religious beliefs on their employees, who come from a wide range of backgrounds.  Depending on the method used, contraception can cost between $15 and $1,000 up front, and the contraceptive coverage rule ensures that fewer women will pay out-of-pocket for birth control, which is not only important for family planning but also to address other health concerns, such as polycystic ovarian syndrome.

To learn more about the Affordable Care Act and reproductive health care, see our report, Through the Lens of EQUALITY: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women.

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Filed under Contraception, Emergency Contraception, Health Care, Health insurance, Reproductive Rights, Uncategorized, Women's health

PA Lawmakers Should Care More about the Health of the Commonwealth’s Residents

By Amal Bass, WLP Staff Attorney

With the uncertainty of the 2012 elections behind us, we know that the Affordable Care Act (ACA) — known to many friends and foes alike as “Obamacare” — is here to stay, with most of its provisions having passed constitutional muster under U.S. Supreme Court review.  Nevertheless, Pennsylvania has stalled on the implementation of this important law, despite having already accepted millions of dollars in federal funding to prepare for it.  To protect the health and well-being of Pennsylvania’s residents, the Corbett Administration and the Pennsylvania General Assembly must act now to determine how the Commonwealth will handle key features of the ACA, including the establishment of an insurance exchange and the expansion of Medicaid eligibility.

The ACA will create state-based marketplaces for private insurance that will make affordable coverage available to small businesses to purchase for their employees and to individuals who do not qualify for Medicaid and who do not receive health insurance through their employers.  These exchanges are scheduled to open for enrollment on October 1, 2013, with coverage beginning on January 1, 2014.  States have three options: set up their own exchanges, partner with the federal government, or have the federal government set up and run the state’s exchange.  Although Pennsylvania had announced its intention to build a state-run exchange a year ago, it did not submit a Declaration Letter to the U.S. Department of Health and Human Services (HHS) by November 16, 2012, as required.  Last week, the Obama Administration extended the deadline to December 14, 2012 for states to submit blueprints for such exchanges for approval by HHS.  The states that intend to partner with the federal government have until February 15, 2013 to submit their plans to HHS.

The Corbett Administration has not indicated what it intends to do about the establishment of an insurance exchange.  Bills are pending in the General Assembly, but there has been no action on them.  The Commonwealth is thus far behind several other states that are taking the necessary steps to set up these exchanges on time.  Without clear direction from the governor and without appropriate legislation, it is likely that Pennsylvania will not set up a state-run exchange in a timely manner, resulting in either a federally-run or partnership exchange.  Federal involvement in the Commonwealth’s exchange may be in the best interests of Pennsylvanians, or it may not be — but it is certainly not in Pennsylvania’s best interests for the Governor and the General Assembly to ignore one of the most important issues in years.

The Corbett Administration has also remained silent on whether the Commonwealth intends to expand Medicaid eligibility to 138 percent of the federal poverty level, with the federal government paying a large portion of the costs as part of the Affordable Care Act.  In National Federation of Independent Business v. Sebelius, the Supreme Court upheld most of the Affordable Care Act, but weakened the Medicaid expansion provision by making it so that states that refuse to comply do not lose all of their Medicaid funding.  Medicaid expansion would provide health coverage to working families that cannot otherwise afford private insurance and would bring more than $17 billion in federal dollars into Pennsylvania’s economy.  Representative Dan Frankel (D-Allegheny) has introduced legislation, H.B. 2557, to enable Medicaid expansion, but the bill has not yet passed.  If Pennsylvania declines to participate in Medicaid expansion, many poor individuals, many of whom are women, will be left without health coverage.

Pennsylvania’s refusal to engage in ACA implementation, including its silence on the establishment of an exchange and the expansion of Medicaid, shows its disregard for the health of the women, men, and children who live in the Commonwealth.  It is time for the Corbett Administration to take Pennsylvania residents’ health and well-being seriously.

For more information on the ACA and WLP’s work on access to health care, see WLP Health Care Reform and WLP’s Report, Through the Lens of Equality: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women.

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Filed under Health Care, Health insurance, Medicaid, PA Legislature, Women's health