Hobby Lobby ruling ‘opens the floodgates’ to test boundaries
|By Christopher Snowbeck, Pioneer Press, St. Paul, Minn.|
|McClatchy-Tribune Information Services|
You would use one card at the pharmacy for medicine your boss has agreed to pay for as part of the company's health plan.
The second card would go for prescriptions that your employer objects to on religious grounds, with costs being charged directly to your health insurance company.
But a landmark decision earlier this summer from the
Experts stress that they aren't sure exactly how the government, employers and insurance companies will respond to the court's decision, which found that crafts retailer
There are questions about how many employers might be entitled to health law exemptions under the ruling and whether the ruling could be extended beyond contraceptive benefits to medical services and employment questions. All the uncertainty likely means at least one thing: More litigation.
"As a legal matter, this opens the door for people to test the boundaries," said
In the case,
A court majority agreed with
"Because the contraceptive mandate forces them to pay an enormous sum of money -- as much as
The federal government has provided a less restrictive way of providing the benefit, Alito wrote, in allowing an accommodation for faith-based nonprofit employers. Employees of those nonprofits can obtain contraceptives and the bills are sent to the health insurance company and not the employer.
"Our decision in these cases is concerned solely with the contraceptive mandate," Alito wrote. "Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer's religious beliefs."
But in her dissenting opinion, Justice
Ginsburg argued that the court's reasoning could be applied to all forms of contraceptives -- not just the four singled out by
"Although the court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private," Ginsberg wrote.
The court's ruling stopped short of prescribing that the government's accommodation for faith-based nonprofits be extended to companies like
Even so, the ruling put a spotlight on the work-around for faith-based nonprofit groups, which has been in place since
"In those cases, female (health plan) members receive a second ID card in the mail that can only be used for contraceptive coverage provided by the Affordable Care Act," said
"To date, we have issued less than a thousand of the second cards," McManus said.
As for the larger question of whether the
Before the Affordable Care Act, 85 percent of companies with more than 200 employees covered the cost of prescribed contraceptives, as did two-thirds of firms with 3 to 199 employees, Sobel said. Laws in 28 states stipulate that contraceptives must be covered if a state-regulated employer health plan has pharmacy coverage.
But Kaardal said he doubted many for-profit companies will use the
"There are so few private corporations that have that," he said.
Until the federal government decides how to react to the court's ruling, women at companies like
Daniel S. Kleinberger, a professor at
The court's ruling focused on closely held corporations, Kleinberger said, adding that it didn't clearly define which of those companies might qualify. There are very few closely held corporations, he added, where owners imbue the business's charter with religious beliefs in the way described at
Kitrosser of the U, however, hesitated to speculate, saying: "The majority definitely felt free to suggest that this will not come up a lot, whereas the dissent said: You have no basis for saying that."
What's the likely next step?
"Someone is going to have to tell federal employees how to decide whether to grant an exemption," Kleinberger said. "Whatever they do, there likely will be litigation over that."
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