Why You Shouldn’t Worry About Losing Your Birth Control

Even if Hobby Lobby wins, employers won’t try (or likely be able) to wiggle out of Obamacare’s contraception mandate.

Demonstrators rally outside of the U.S. Supreme Court during oral arguments in Sebelius v. Hobby Lobby March 25, 2014 in Washington, DC.
National Journal
Clara Ritger
March 26, 2014, 1 a.m.

The two com­pan­ies su­ing the gov­ern­ment to get out of Obama­care’s con­tra­cep­tion man­date think this is a fight for re­li­gious free­dom na­tion­wide. The White House sees the leg­al chal­lenge as a threat to wo­men’s rights every­where. But really, the stakes aren’t all that high.

The truth is, the vast ma­jor­ity of wo­men in Amer­ica will con­tin­ue to have the cost of their birth con­trol covered by in­sur­ance, the Su­preme Court’s de­cision not­with­stand­ing.

The private com­pan­ies in the case, craft-sup­plies re­tail­er Hobby Lobby and cab­in­et-maker Con­es­toga Wood, are run by fam­il­ies with strong re­li­gious af­fil­i­ations who see some forms of con­tra­cep­tion, such as IUDs and Plan B (“the morn­ing-after” pill) as abor­ti­fa­cients — sub­stances that in­duce abor­tion. They ar­gue that re­quir­ing the com­pan­ies to cov­er all forms of con­tra­cep­tion is a vi­ol­a­tion of the own­ers’ re­li­gious liberty.

Doubt the sin­cer­ity of their be­liefs? Hobby Lobby provides em­ploy­er-sponsored health in­sur­ance for 13,000 people and is owned by the Green fam­ily, South­ern Baptists who are in the pro­cess of erect­ing a Bible mu­seum in Wash­ing­ton. Con­es­toga Wood cov­ers more than 950 em­ploy­ees and is owned by the Hahn fam­ily, who are Men­non­ites.

In­deed, Tar­get and Gen­er­al Elec­tric they are not.

So if the Su­preme Court rules in fa­vor of these two for-profit en­tit­ies, the justices are not likely to rule broadly enough to en­com­pass a sig­ni­fic­ant num­ber of em­ploy­ers, said Steph­en Bain­bridge, a cor­por­ate-law pro­fess­or at the Uni­versity of Cali­for­nia (Los Angeles).

“The chances that the Su­preme Court would rule that firms that are pub­licly held, large ‘Apple-type’ cor­por­a­tions, can get ahold of these ex­emp­tions are es­sen­tially nil,” Bain­bridge ex­plained.

“In the most likely scen­ario in which Hobby Lobby and Con­es­toga Wood would pre­vail,” he said, “the Court is likely to rule that only firms where es­sen­tially the firm is the al­ter-ego of the share­hold­ers, where there is a small num­ber of share­hold­ers who hold co­hes­ively and un­an­im­ously strong re­li­gious be­liefs that in­form how the busi­ness is run, only firms like that would be able to get the kind of ex­emp­tion that Hobby Lobby and Con­es­toga Wood are seek­ing here.”

And big busi­ness knows it. No For­tune 500 com­pany filed amicus briefs in sup­port of the Hobby Lobby or Con­es­toga Wood, a clear sig­nal to many health in­sur­ance in­dustry watch­ers that the com­pan­ies aren’t likely to cut birth-con­trol be­ne­fits.

“Abor­tion is a very di­vis­ive so­cial is­sue,” said Dan Mendel­son, CEO of con­sult­ing firm Avalere Health. “If you are the sole own­er of a faith-based com­pany, you are com­pletely aligned. You can chal­lenge it and feel good about it.

“If you’re run­ning a For­tune 500 com­pany, you have a very di­verse group of own­ers and stake­hold­ers who have their eyes on you,” Mendel­son said. “You can’t take a con­tro­ver­sial po­s­i­tion on this without back­lash.”

An­oth­er reas­on com­pan­ies will likely con­tin­ue of­fer­ing cov­er­age? They his­tor­ic­ally have.

In 2010, 85 per­cent of com­pan­ies with more than 200 em­ploy­ees were of­fer­ing con­tra­cept­ive cov­er­age, ac­cord­ing to the Kais­er Fam­ily Found­a­tion’s Em­ploy­er Health Be­ne­fits Sur­vey. In 2002, the num­ber of large em­ploy­ers cov­er­ing con­tra­cep­tion was 78 per­cent. (The amount em­ploy­ees had to con­trib­ute to con­tra­cep­tion, such as the birth-con­trol pill, in co-pays or oth­er cost-shar­ing wasn’t meas­ured by the sur­vey, al­though the Af­ford­able Care Act now makes the pill and oth­er con­tra­cept­ives avail­able at no cost.)

And, Bain­bridge said, most private cor­por­a­tions won’t have the same claims to re­li­gious free­dom that the own­ers of Hobby Lobby and Con­es­toga Wood are de­fend­ing.

“The es­sen­tial is­sue is wheth­er the busi­ness is so in­ter­twined with the per­son­al be­liefs of the own­ers that we should al­low the busi­ness to raise re­li­gious free­dom is­sues that the own­ers would be able to do if they were sole pro­pri­et­ors,” Bain­bridge said.

The health care law al­lows small busi­nesses with few­er than 50 em­ploy­ees — com­pan­ies that are more likely to be fam­ily owned and there­fore have sole pro­pri­et­or­ship, Bain­bridge said — to opt out of provid­ing health in­sur­ance without pen­alty, thereby ex­empt­ing them from the con­tra­cep­tion man­date.

But em­ploy­ers large and small have an in­cent­ive to in­clude con­tra­cept­ive cov­er­age on their plans, not least be­cause it’s ap­pears to be a long-term cost saver.

Use of con­tra­cept­ives and pub­licly fun­ded fam­ily-plan­ning pro­grams have been found to sig­ni­fic­antly re­duce un­in­ten­ded preg­nan­cies, ac­cord­ing to a 2011 ana­lys­is on the HHS man­date from the Guttmach­er In­sti­tute, a re­pro­duct­ive health rights or­gan­iz­a­tion.

The ana­lys­is also found that in­sur­ance cov­er­age of con­tra­cep­tion im­proves its use and cited a 2000 sur­vey from the Na­tion­al Busi­ness Group on Health that found em­ploy­ers who don’t of­fer con­tra­cept­ive cov­er­age spend 15 per­cent to 17 per­cent more due to the costs of preg­nancy and re­duced em­ploy­ee pro­ductiv­ity. Even the gov­ern­ment, which began of­fer­ing con­tra­cept­ive cov­er­age to fed­er­al em­ploy­ees in 1998, saw no net in­crease in plan costs after adding the be­ne­fit, ac­cord­ing to an Of­fice of Per­son­nel Man­age­ment let­ter cited in the Guttmach­er In­sti­tute re­port.

“It makes sense to provide these be­ne­fits,” Mendel­son said. “It’s very in­ex­pens­ive to provide con­tra­cept­ive cov­er­age. If you can im­prove the health of your pop­u­la­tion and if you can en­able people to have more con­trol over their health care, you’re bet­ter off.”

The Su­preme Court is ex­pec­ted to is­sue a fi­nal rul­ing on the cases later this sum­mer.

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