High court ruling on health law seen as victory for religion

July 01--WASHINGTON -- The limits the Supreme Court slapped on the Affordable Care Act on Monday won't immediately stop most women from getting health insurance that covers the cost of contraceptives -- but the court's ruling does offer an expansive new view of the right to religious freedom in America.

Those were the conclusions many medical, religious and legal experts reached after the high court issued its ruling in two combined cases in which it said that privately owned corporations do not have to comply with the "Obamacare" requirement that the health insurance policies they offer must include comprehensive contraceptive coverage.

"This ruling applies to a limited number of companies that are family-owned," said Donald R. Ingalls, vice president of government relations for BlueCross BlueShield of Western New York. "It is not clear how broadly this will apply."

What's more certain is that the court expanded the scope of religious freedom, ruling that privately held businesses, just like individuals, can raise faith-based legal objections to federal policy.

That's why Americans United for the Separation of Church and State called the decision "a dangerous precedent."

And it's why Bishop Richard J. Malone of the Catholic Diocese of Buffalo said, "I'm relieved and I'm very encouraged" by the decision.

"We're talking about living our faith values in the public square, living our faith values in our occupation, in our businesses, and that's why the decision, I think, is a real win for people's consciences," Malone said.

Two years after upholding most of the Affordable Care Act, the justices, in a 5-4 ruling, said the law's requirement that contraceptives be covered impermissibly violates the Religious Freedom Restoration Act of 1993, a law Congress passed to expand on the First Amendment's protections for freedom of religion.

"RFRA was designed to provide very broad protection for religious liberty," Justice Samuel A. Alito Jr. wrote in the majority opinion.

Under the law, the justices were forced to examine whether the contraceptive mandate "substantially burdens" the religious freedom of companies whose owners object to the requirement. "We have little trouble concluding that it does," Alito wrote.

The issue divided the court, however, as the court's four liberal justices joined a dissent authored by Justice Ruth Bader Ginsburg."In the Court's view, RFRA demands accommodation of a for-profit corporation's religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners' religious faith -- in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ," Ginsburg wrote.

The ruling applies to Hobby Lobby and Conestoga Wood Specialties Corp., the companies that fought the mandate all the way to the Supreme Court. And by extension, it applies to all "closely held," or privately owned, companies, which, according to a 2009 Columbia University study, employ slightly more than half the American workforce.

That does not mean that more half the female employees in the country are about to lose their contraceptive coverage. Instead, it only means that privately held companies -- which range in size from Koch Industries to the corner dry cleaner -- can choose to change their insurance offerings to exclude contraceptive coverage.

But will they?

Michael Dorf, a constitutional law professor at Cornell University, doesn't think many companies will risk the backlash that could ensue from such a change.

"The bad public relations will affect the bottom line," he said on his blog, Dorf on Law -- where he also said of the Hobby Lobby decision: "The case just is not that important."

Besides, for many business owners, there's nothing controversial or unusual about the idea of offering health insurance policies that cover contraception. Even before the Affordable Care Act required such coverage, 85 percent of large American employers already offered health plans that covered birth control, a Kaiser Family Foundation survey found.

Nevertheless, the decision stunned and angered many women's health advocates.

"We're seriously disappointed," said Karen J. Nelson, president and CEO of Planned Parenthood of Western and Central New York. "Some bosses now will have the ability to interfere with their employees' access to birth control."

Supporters of religious liberty and the separation of church and state agreed, though, that the decision's greater impact could be in the courtroom.

Most immediately, the case appears to set a precedent for a similar case in which the Little Sisters of the Poor are challenging an Affordable Care Act policy in which it must offer government-paid contraceptive coverage to its employees, they said.

Beyond that, they said it opens the door to litigation challenging other laws that might be seen as forcing private business people to violate their religious beliefs. For example, a conservative Christian baker who refuses to cater gay weddings might now want to challenge the sort of statutes some states and localities have prohibiting discrimination against gays.

"The decision's ground-breaking nature makes it a landmark victory for religious liberty and freedom of conscience that will have a major impact for decades to come," said Curt Levey, president of the Committee for Justice, a conservative legal group. "The impact will be felt not just in the legal world, but in the political and cultural arenas as well, where religious liberty has come under increasing attack in the last few years when it stands in the way of progressive social causes, including same-sex marriage."

Americans United for the Separation of Church and State, meanwhile, warned the decision could have a far-reaching negative impact.

"This decision is a double-edged disaster," said the Rev. Barry W. Lynn, executive director of Americans United. "It conjures up fake religious freedom rights for corporations while being blind to the importance of birth control to America's working women."

Alito said in his opinion, though, that the decision was meant to be a narrow one.

"In their decision, the justices went out of their way to say this doesn't extend to all insurance mandates, like blood transfusions and vaccinations," said Dr. Nancy H. Nielsen, a senior associate dean at the University at Buffalo School of Medicine and Biomedical Sciences and a former president of the American Medical Association. "So I don't think this will have bigger implications beyond the contraception issue."

Yet in her dissent, Ginsburg said she thinks the decision's ramifications will be vast. No matter what Alito said, Ginsburg questioned whether the ruling would prompt court challenges from Jehovah's Witnesses who oppose blood transfusions, Christian Scientists who oppose vaccinations and Scientologists who object to antidepressants.

The Obama administration will have to adjust to the fact the court narrowed Obamacare's contraceptive coverage requirement. White House Press Secretary Josh Earnest said Congress should act to ensure that women continue to get the coverage they deserve.

"President Obama believes that women should make personal health care decisions for themselves rather than their bosses deciding for them," Earnest said. "Today's decision jeopardizes the health of the women who are employed by these companies."

The decision also comes as something of an embarrassment to Sen. Charles E. Schumer, a New York Democrat who authored the Religious Freedom Restoration Act, the 1993 law the justices relied on to narrow the contraceptive requirement.

Asked for comment on the decision, Schumer's office referred to the brief that he and several other senators filed in the cases, in which they told the justices: "Congress could not have anticipated, and did not intend, such a broad and unprecedented expansion of RFRA.

"Nor did Congress intend for courts to permit for-profit corporations and their shareholders to use RFRA to deny female employees access to health care benefits to which they are otherwise entitled," the brief said.

News Staff Reporter Lisa Khoury contributed to this report. email: [email protected]

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