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.

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.

The Affordable Care Act Extends No-Cost Preventive Care to Women

Nikki Ditto, WLP Intern

Wednesday, August 1^st  is an important day for women’s health. After this date, all new insurance plans must cover certain women’s preventive health services, including contraceptives, without co-pays or deductibles. This represents an essential change in access to health care for women. Women, who have long been subjected to denial of access to insurance coverage for essential health services are more likely than men to forgo needed health care due to cost.  The number of women who can access these benefits will continue to expand as older plans lose their “grandfathered” status and become subject to the ACA’s preventive health services requirements.  For now, many college and university students will benefit if they receive health insurance through their schools, as those plans usually begin their health plan years around the start of the school year.  Other insurance policies that are renewed with substantially different content (usually on January 1^st) will also comply with the new law.

Women whose insurance plans fall under the new guidelines will now have access to a number of services that will “keep them healthier and…catch potentially serious conditions at an earlier, more treatable stage,” according to Secretary of Health and Human Services, Kathleen Sebelius. This includes annual well-woman visits, as well as screening and counseling for HPV, HIV, and STIs. Insurance policies will also have to cover testing for gestational diabetes, breastfeeding support, and domestic violence screening and counseling. Perhaps most significantly, women will also have access to birth control and other forms of contraception without a co-pay, though exceptions have been made for religious institutions and self-funded plans. These services add to the no-cost coverage that has already been implemented for pap smears and mammograms.

The Department of Health and Human Services reports that 20.4 million women have been and will be affected by this expansion in coverage. A startling 52% of women “report delaying needed medical care because of cost,” a number that will be decreased under the ACA. The Women’s Law Project (WLP) explained in its report Through the Lens of EQUALITY: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women that “lack of access to the full range of women’s health care has many adverse health consequences.”  Many women are unable to afford contraceptives, which range from $15 to more than $1,000 up front depending on the method.  The contraceptive coverage rule will increase women’s access to these methods of contraception, which will help them plan pregnancies and address other health concerns, such as polycystic ovarian syndrome, for which birth control pills are a common treatment.

Controversy continues over the provision requiring employer-provided insurance plans to cover birth control and other forms of contraception, including sterilization. As WLP blogged about today, twenty-four legal challenges are still pending in courts. The ACA already provides exceptions for religious institutions, and allows religiously affiliated businesses to push cost and administration on to the insurance companies. These accommodations, however, have not stopped the debate. WLP has blogged before about lawsuits that challenge the constitutionality of the provision on the basis of the First Amendment. As Terry Fromson, WLP’s Managing Attorney, explained, “the First Amendment does not give church leaders any right to impose their beliefs about contraception on women.”

Overall, the implementation of this provision of the ACA represents an important and necessary change to the way we view women and women’s health. Reproductive and sexual health must be seen as central to ensuring the health and well-being of all women, and not as a secondary concern. America will be healthier if women are given better access to the services necessary to care for themselves and their families, and increasing access to contraception is a step in the right direction.

Courts Come to Different Decisions on the ACA’s Provision Requiring Some Employers to Cover Contraception

Mary Pat Dwyer, WLP Law Intern

Two federal district court judges ruled recently on claims regarding the Affordable Care Act (ACA) provision which requires that employers providing health insurance to their employees cover reproductive health services, including birth control, emergency contraception, and other procedures.

On Tuesday, July 17, Judge Warren Urbom of the District of Nebraska dismissed a suit brought by several states, Catholic groups, and individual plaintiffs challenging the constitutionality of the provision.  The groups argued that the First Amendment’s protection of freedom of association gave them the right to deny their employees coverage for these essential services.  The states claimed that the groups and others like them would cease to provide insurance for their employees rather than comply with the law, which in turn would increase the number of Medicaid applicants and adversely affect state budgets.

Judge Urbom found that the plaintiffs did not have standing to pursue their claim that the mandate violated the first amendment for two reasons.  First, the federal government has delayed enforcement of the provision until August 2013.  Because of this, the groups are not facing any imminent requirement to comply with the law, and thus cannot show the “direct and immediate harm” that plaintiffs must show in order to have the courts consider their claims. Second, the states claims that they would face increases in Medicaid costs were based purely on “layers of conjecture,” and had no factual grounding. Furthermore, Judge Urbom pointed out that the Department of Health and Human Services is currently considering revising the definition of religious employers under the ACA. Because of the potential for revision, none of the plaintiffs could show that they would ever be impacted by the provision.

On Friday, July 27, Judge John Kane of the District of Colorado reached a drastically different conclusion when he granted an injunction prohibiting the federal government from enforcing the provision against Hercules Industries Inc., a private corporation. Judge Kane found that for the Catholic plaintiffs, who serve as co-owners and board of directors of a company that manufactures HVAC equipment, the obligation to comply with the law threatened their right to exercise their religious beliefs under the Religious Freedom Restoration Act (RFRA). Katherine Sebelius, Secretary of the Department of Health and Human Services, expressed disappointment with Judge Kane’s decision, but also stated that she is “confident that as this case moves through the courts, the policy that most health insurance plans cover contraception will be upheld.” Sebelius also reaffirmed the administration’s position that “health decisions should be between women and their doctors, not their employers.”

Twenty-four similar lawsuits claiming that the requirement violates the First Amendment are still pending in courts across the country. These suits undermine the security of women’s health care, and it is crucial that the courts recognize the grave importance of comprehensive health care access. As WLP highlighted in Through the Lens of Equality: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women, women who face restricted access to contraceptive care suffer serious health risks as a result. Women who are unable to effectively and safely plan their pregnancies are more likely to experience pregnancy complications. For women who have preexisting conditions, such as diabetes, coronary artery disease, or arthritis, unintended pregnancies can be life threatening. Additionally, children born of unplanned pregnancies, face increased risks of premature birth, low birth, poor nutrition, and infant mortality.

Neither judge ruled on the constitutionality of the provision. However, as we have previously explained, the federal contraceptive coverage rule does not violate the First Amendment because it is a neutral law that does not target a particular faith and applies to everyone equally.  It is constitutional.

The United States Supreme Court has weighed in: The Affordable Care Act is here to stay.

By Women’s Law Project

The Affordable Care Act (ACA), signed into law by President Obama in March 2010, expands health insurance coverage to more than 30 million people, prevents insurance companies from discriminating against people with pre-existing conditions, and ends abusive insurance practices.  On June 28, 2012, the Supreme Court upheld the law, finding that the individual mandate (which is the requirement that everyone carry insurance or pay a fine) is constitutional under Congress’ taxing power.  The Court also upheld the Medicaid expansion provision (which expands Medicaid eligibility for residents to 133 percent of the federal poverty level) as long as states that refuse to comply do not lose all of their Medicaid funding.

While some provisions of the ACA have already gone into effect, other provisions will be in effect by 2014.  This law will improve the lives of women and children across the country, allowing them to access affordable health care.  The ACA benefits women in many ways, including by preventing insurers from using pregnancy, domestic violence, and sexual violence as a basis for denying women coverage (pre-existing conditions), prohibiting the practice of charging women higher insurance premiums than men for the same insurance (known as gender rating), guaranteeing maternity coverage, and ensuring that new insurance plans cover preventive services such as mammograms and pap smears. 

The ACA is constitutional and vitally important to improving the health of American citizens, particularly women.  However, gaps in coverage for health care essential to women remain.  Most notably, the ACA allows insurers to discriminate against women by refusing to cover abortion care, and the Pennsylvania legislature is considering legislation that will ensure that insurance plans sold through the ACA’s state exchanges do not include abortion coverage except in cases of life endangerment, rape, or incest.  Furthermore, the Supreme Court’s determination that states may decline to comply with the Medicaid expansion program without risking loss of their existing Medicaid funding raises questions about whether the federal government will be able to implement the expansion effectively.  If states decline participation in Medicaid expansion, many poor individuals, many of whom are women, will be left without health coverage.  Now the focus is on Pennsylvania to ensure coverage for everyone.

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.

First Amendment Does Not Give Church Leaders Right to Impose Beliefs on Women

Terry L. Fromson, Women’s Law Project Managing Attorney

Advancing the church’s unrelenting pursuit of control over women’s reproductive lives, Joe Watkins’ op-ed published in The Philadelphia Inquirer on June 3 (Mandate for health services touches full religious spectrum) incorrectly labels the federal contraceptive coverage rule unconstitutional.  The First Amendment does not give church leaders any right to impose their beliefs about contraception on women.

Nor do women want the church to interfere in their personal decisions about use of contraception.  Most women, including active churchgoers, use contraception at some time in their lives.  They do so because contraceptive coverage is essential to their health care, both for achieving healthy pregnancies and for combatting medical conditions unrelated to pregnancy. The cost and lack of insurance coverage for contraception have remained barriers to access for many.

The federal contraceptive coverage rule, which ensures access to contraceptive services, prescriptions, and devices for millions of women, is constitutional.  Neutral laws that do not target a particular faith and apply to everyone equally do not violate the First Amendment.  The contraceptive coverage rule is such a law.

Contrary to the op-ed’s assertion, the challenged federal rule does not require religious institutions to pay for contraceptive coverage.  It exempts churches themselves and then goes beyond and provides that religiously affiliated institutions that perform non-religious functions do not even have to pay for coverage.  Religiously affiliated schools, hospitals and charitable institutions employ individuals of all faiths and accept public dollars to provide their services.  Individuals who work for them should not have to give up their Constitutional rights.

For more information, see our blog from February, “Obama Administration Ensures a Wide Range of Contraceptive Insurance Coverage, Even at Religiously-Affiliated Institutions”

Also see WLP work on Health Care Reform.

White House Holds Town Hall on Women’s Health

Molly Cohen, WLP Intern

With the Supreme Court’s ruling on the 2010 Affordable Care Act looming on the horizon, the White House recently held a town hall meeting on Women’s Health to tout the benefits of the Act. Panel members included Valerie Jarrett (Senior Advisor to the President and Chair of the White House Council on Women and Girls), Kathleen Sebelius (Secretary of Health and Human Services), Judy Waxman (Vice President of the National Women’s Law Center), Mayra Alvarez (Director of Public Health Policy in the Office of Health Reform, HHS), and other female leaders in Washington. The White House promoted the event as “an interactive, open dialogue about how the health care law, the Affordable Care Act, is improving the health of women and their families” and encouraged viewers to submit questions via Twitter and Facebook.

Secretary Sebelius spoke frankly about the discrimination women experience throughout the healthcare system. As our recent report, Through the Lens of EQUALITY: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women also illustrates, women are regularly denied coverage if they have ever had breast cancer, cervical cancer, a cesarean section, or medical treatment for injuries resulting from domestic violence or sexual assault.

Those who do qualify for coverage are subject to a practice known as “gender rating,” in which women pay substantially higher premiums than men of the same age. In fact, a Pennsylvania study found that some insurance companies charge higher premiums to non-smoking women than male smokers of the same age. At the White House town hall, Sebelius remarked, “Now let’s say you were lucky and healthy. Even then, insurers could charge women up to fifty percent more than men just for being a woman. Essentially, this meant that being a woman was, in itself, a pre-existing condition.”

The ACA, if fully implemented, will make gender rating and the practice of withholding coverage on the basis of a preexisting condition illegal in the individual and small group markets. The Act also greatly expands the range of preventive care covered by insurance. Section 1001, for example, requires new health insurance plans to offer all screenings and services recommended by the U.S. Preventive Services Task Force, free of charge to the patient. This includes regular mammograms for women over 40 and screenings for cervical cancer. Section 1302 includes maternal and newborn care in the list of “essential health benefits” new policies must cover, beginning January 2014. Women will no longer have to pay co-pays on prenatal visits, folic acid supplements, consultations with lactation specialists, or screenings for conditions such as gestational diabetes and anemia.

Secretary Sebelius explained that by making preventative care measures more affordable, the ACA seeks to eradicate existing inequalities. Currently, African American women are more likely to die of breast cancer than any other group, while Latinas have the highest rates of cervical cancer.  Under the current healthcare system, low-income women, especially those without insurance, are forced to delay seeking medical care because of the financial burden of doctors’ visits. They are therefore more likely to receive inadequate care and to die prematurely.

While a recent report found that the number of uninsured young Americans is on the decline, any progress made under the ACA is shadowed by the uncertainty surrounding the upcoming Supreme Court decision. If the White House’s worst-case scenario is realized and the Court strikes down the ACA in its entirety? Sebelius warned this outcome would have a “pretty cataclysmic impact.” In a blog issued after the town hall on Women’s Health, she stated:

“…for women, the law means peace of mind. Peace of mind that no matter their circumstance there will be a health system that works for them and cares about their needs. That’s what the law is all about.”

If you want to know more about the link between sex bias and adverse health effects in women, please read our new report Through the Lens of EQUALITY: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women. The Affordable Care Act is an important step for women in Pennsylvania and throughout the country.

The Pennsylvania General Assembly Should Hold Public Hearings on SB 1063 and HB 1957 to Insure Motherhood

Pennsylvania’s women deserve to have maternity coverage in their health insurance.  Individual health insurance policies often do not cover maternity care, leaving many women at risk of having inadequate or no insurance when they become pregnant.  Furthermore, pregnant women applying for health insurance are denied maternity coverage because pregnancy is considered a “pre-existing condition.”  Currently, there is no law ensuring maternity benefits to women in Pennsylvania who purchase an individual policy of insurance.  The Affordable Care Act, which will not be fully implemented until 2014, assuming the United States Supreme Court does not overturn the law, may address these gaps in the law, but women need coverage now.  SB 1063 and HB 1957 would ensure that coverage.

It is important for the Pennsylvania General Assembly to hold public hearings on these bills.  Please urge Senator White and Representative Micozzie to move forward with these pieces of legislation:

Chair, House Insurance Committee: Nicholas Micozzie, 717-783-8808
Chair, Senate Baking & Insurance Committee: Donald White, 717-772-1589

For more information, see our post, Pennsylvania: Stop Insurers from Denying Essential Maternity Coverage to Women.

“I Will NOT Be Denied” Health Care

The Women’s Law Project is proud to join the National Women’s Law Center’s  I Will NOT Be Denied™ campaign to educate the public about the benefits of the health care law and what is at risk if it is repealed.  We are pleased to participate in releasing NWLC’s new campaign video which uses intimate portraits of women to highlight the importance of protecting the benefits that women are already receiving from the law and will continue to receive as new benefits roll out through 2014.

While opponents spread misinformation about the Affordable Care Act, the bottom line is that the health care law is already making a meaningful difference in peoples’ lives.

• Millions more women can now receive preventive services like mammograms, Pap smears, and colonoscopies without a co-pay;
• It is now illegal for insurance companies to deny children care because of a pre-existing condition.
• Later this year, millions more women will have access to well-woman exams and birth control without a co-pay, and all health plans will have to include maternity care.

And this is just the beginning. But opponents of the law are fighting to take all these important benefits and common-sense protections away from you.

Take a stand and help us protect women’s health care. Join the campaign by signing our online petition, learn the facts, share the video and tell opponents of affordable care “I Will NOT Be Denied.”™
And join the #NotDenied conversation on Twitter.

Declining Rate of Reproductive Health Services Among Young Women

Data from the National Survey of Family Growth polls show an 8% decline in reproductive health services among young women from 2002 to 2008. Low-income women were shown to be the least likely to have obtained reproductive health services. Researchers identified several factors which may have contributed to this decrease. Among those factors identified were: “the decline in public sector clinics serving economically disadvantaged women; increasing unemployment and the corresponding lack of health insurance; updated gynecological health screening guidelines that require fewer Pap tests; and legislation that has increased mandatory parental participation in adolescent sexual and reproductive health care.”

The authors of the study postulated that their findings might reflect “‘changing social, economic, and political contexts in which reproductive services were needed…over the last decade’” but added that “new provisions for care under healthcare reform may bring some of those women back into care.” Shortly after healthcare reform was passed, the Guttmacher Institute released a news brief which summarizes some of expansions of reproductive healthcare services that healthcare reform will bring. It notes that “a provision expanding eligibility to all Americans with a family income below 133% of the federal poverty level will allow 16 million more Americans to join Medicaid by 2019 than would otherwise be the case.” The Medicaid expansion will allow more Americans access to the program’s guarantee of family planning services without cost sharing. Additionally, healthcare reform will allow those who are currently uninsured with incomes above 133% of the federal poverty line to purchase private insurance through the new health care exchanges, most of which will provide a similar package of reproductive healthcare to what Medicaid offers.

Given the risky behaviors among young people reported by the National Campaign to Prevent Teen and Unplanned Pregnancy, it is evident that supporting the implementation of healthcare reform as well as other efforts to make reproductive healthcare services more widely available is incredibly important. The Campaign’s data showed that among the young people polled, “nearly half of those who are in a sexual relationship either don’t use contraception at all or use it inconsistently, and almost 20% of all respondents predict that they’ll have unprotected sex within the next three months.” The result of this risky behavior is that “Seven in 10 pregnancies in the 18-to-29 age group are unintended, and men and women in their 20s have among the highest rates of sexually transmitted infections of any age group, including chlamydia, gonorrhea and syphilis.”

If you are interested in learning more about this issue, the National Survey of Family Growth study is available online, published by the American Journal of Public Health. 

To learn more about the Women’s Law Project’s work on women’s health, including on the implementation of Healthcare Reform and on reproductive health, visit our website, and stay tuned for our forthcoming publication, Through the Lens of Equality: Discrimination, Health, and a New Vision for Pennsylvania’s Women.