Supreme Court's Hobby Lobby ruling fuels political and legal uncertainty

By TONY PUGH and STEPHANIE HAVEN McClatchy Washington Bureau Published:

WASHINGTON (MCT) -- Across the country, women, employers, insurers and health care advocates are trying to adjust to the new legal landscape created by the Supreme Court's decision allowing some for-profit corporations to deny contraceptive coverage to employees, based on the owners' religious faith.

As the real-life impact of the controversial ruling Monday slowly begins to play out, questions about its breadth, scope and meaning continue to be debated.

In the 5-4 decision, the high court ruled that two family-owned corporations, Hobby Lobby and Conestoga Wood Specialties, did not have to cover birth control on their employee health insurance plans as required under the so-called "contraceptive mandate" provision of the Affordable Care Act.

In the majority ruling, Justice Samuel A. Alito wrote that it would violate a corporation's rights under the Religious Freedom Restoration Act to force a business owner to provide coverage for contraceptives if it went against his or her faith.

Monday's decision was the first time the high court ruled that closely held corporations have religious rights, like individuals. As defined by the Internal Revenue Service, a closely held company is one with only a handful of shareholders that is not tailored to personal services.

While 90 percent of U.S. companies qualify as closely held, 85 percent of those businesses had already covered contraceptives before the Affordable Care Act became law. For the 52 percent of American workers employed by a closely held corporation, therefore, it is unlikely many will lose contraceptive coverage as a result of Monday's decision.

Following the Supreme Court's decision in the Citizens United case that attached free speech rights to companies when it comes to campaign contributions, the Hobby Lobby case was another instance where the court viewed corporations in the same legal light as it does individuals when it comes to certain rights.

"The problem that I think jumps out of the Hobby Lobby case is where do you draw the line and how do you decide what corporations believe," said Steven Wells, a partner at the Minneapolis office of Dorsey & Whitney, an international law firm. "Many corporations have the wherewithal and power that far exceeds that of a human. And to afford them the same kinds of rights can create inequities."

It didn't take long for the ruling to be felt. Within hours, the 11th U.S. Court of Appeals exempted the Eternal Word Television Network, a nonprofit Catholic TV network in Alabama, from fines for not complying with the health law requirement that they cover various types of birth control.

And late Monday night, the Supreme Court temporarily barred enforcement of the health law's contraceptive coverage mandate on behalf of Wheaton College, a nonprofit religious school in Illinois.

In Utah, the Little Sisters of the Poor, a group of Catholic nuns, is one of about 50 nonprofit religious organizations that have filed similar suits seeking exemption from the contraceptive mandate.

But as Justice Ruth Bader Ginsburg argued in her dissenting opinion, the ruling has prompted outrage from women's groups and health care advocates who say the decision could establish a precedent for companies to demand religion-based exemptions for all sorts of health services.

"The fact that the court doesn't see that the same analysis could be applied to immunizations, anti-depressants and blood transfusions is actually one of the most troubling aspects of this because the court seems to be 20 years behind science and evidence," in thinking "that contraception is not basic health care," said Elizabeth Taylor, executive director of the National Health Law Program, which advocates for low income and underserved people.

Taylor also worried that other types of corporations, like nonprofit organizations, could challenge certain coverage requirements in the health law, citing religious objections, as well.

"The potential ramifications of this decision are broad," she said. "Although the court emphasizes that these are closely held corporations and this is only about certain contraceptives, the court's analysis would apply to publicly traded corporations."

The White House is hoping Congress will amend the religious freedom act or pass legislation that would allow employees affected by the ruling to access all types of birth control through their insurance. But if that doesn't happen, President Barack Obama will consider a range of options to address the problem, said White House press secretary Josh Earnest.

"We're still reviewing the decision," Earnest said Tuesday. "We're still reviewing how large the group of people is that's affected by the decision. Once we have determined how large that group is, we'll be able to better assess where they live in the country, what sort of health plans they're covered by. And that will allow us to sort of drill down on what kind of policy solution we can put in place to address this problem."

But Kristan Hawkins, president of Students for Life America, a youth organization that opposes abortion, said in a statement that birth control should be a personal choice.

"As a woman, wife, mother and business owner," she said, "I am perfectly capable of making my own decisions about birth control without having an employer buy it for me or being forced to provide it against my will to my employees. I control my life, not bossy bureaucrats."

"Ultimately, the president will be defending a core principle, which is that women should be able to make their own decisions about their health care without the interference or objection of their boss," Earnest added.

Health care advocates said the ruling's impact will be disproportionately felt by minority and low-income women who may not be able to afford contraceptives without the coverage mandate.

"What is so troubling and disappointing about the decision is that this one form of preventative health care for women was singled out for reasons that the court did not make very clear," said Julianna Gonen, director of government relations at the Center for Reproductive Rights, a nonprofit women's health organization. "We see this a lot, but it's still alarming."

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