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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