Democrats have been bearing the burden of the unpopular Affordable Care Act for years. They may finally be on the verge of getting some political mileage out of it, thanks to the Supreme Court.
Conservatives were ecstatic about the court’s ruling Monday that Hobby Lobby and Conestoga Wood Specialties, because of their owners’ religious beliefs, could not be required under the ACA to include certain types of contraception in their employee health plans. But Democrats have the better hand.
First of all, they are on the same side as public opinion, which favors the ACA requirement that employee health plans cover contraception, even when that goes against a company owner’s personal beliefs. And let’s not forget the optics. Here were five male justices ruling by a slim majority that a for-profit corporation could opt out of a federal law that just happened to deal with women’s health. They further cautioned that corporations should not assume they will necessarily win if they challenge mandated coverage for other procedures forbidden by certain religions, such as blood transfusions and vaccinations. Decisions in those areas, they said, might be different.
Justice Ruth Bader Ginsburg, in a cutting and impassioned dissent, wondered how the court would know which exemptions to grant — how the decisions would avoid appearing to favor one religion over another — and said she feared the justices had ventured into a minefield. The legal and constitutional implications of the ruling will play out in the years to come, in what Ginsburg predicts will be an avalanche of lawsuits from corporations that want religious-based exemptions from other laws and requirements.
But for now, it’s all about the women, both in substance and politics.
The case turned on the request by Hobby Lobby and Conestoga to exclude two types of intrauterine devices (IUDs) and two types of morning-after pills from their employee health plans. The families that own the companies believe life begins at the moment of conception and contend that those contraceptives terminate life after fertilization. Never mind that this is not settled fact; Research suggests that IUDs don’t operate by terminating fertilized eggs. We now have a religious exemption for corporations, granted on the basis of a belief not grounded in science.
We also have Ginsburg’s contention that the court was obligated to consider the burden on those affected — women — and did not. So what kind of impact are we talking about? Planned Parenthood calls the IUD “the most inexpensive long-term and reversible form of birth control you can get.” It is highly effective, lasts for 12 years and costs $500 to $1,000 for medical visits and insertion. The high up-front cost is prohibitive for many women, but the ACA is changing that. It requires that all 20 forms of contraception approved by the Food and Drug Administration be covered with no co-pays, including IUDs.
Calculating the number of women who will be affected is difficult. According to the Guttmacher Institute, a sexual- and reproductive-health nonprofit, more than 2 million women used IUDs in 2010. In her brief Ginsburg also cited research showing that almost one-third of women would switch contraceptives if cost were not a factor, that only one-quarter of women who request an IUD get one after they find out how much it would cost, that women who faced out-of-pocket IUD costs of more than $50 were 11 times less likely to get an IUD than women who paid less than that and that use of IUDs more than doubled after one health plan eliminated patient cost-sharing for the devices.
It's also unclear how many companies will seek such a religious exemption. The ruling applies only to closely held companies, or those owned by a handful of people, often families. But as Ginsburg noted, closely held is not the same as small; Koch Industries is a closely held company that employs 100,000 people in 60 countries. Furthermore, in her reaction to the Hobby Lobby ruling, House Minority Leader Nancy Pelosi said that 90 percent of companies in the United States are closely held. Several companies are already planning to request the same exemption granted to Hobby Lobby and Conestoga.
Ginsburg said “legions” of women would be affected. Pelosi said “millions.” There’s an outside chance the number could be zero. That’s because the court suggested that the government or insurance companies could pay for the coverage and cited government calculations that the cost would be offset by lower pregnancy costs. Yet the numbers don’t change the principles in question. Why should taxpayers foot the bill for this and future instances of corporations getting themselves exempted from following federal law? Why should women have to jump through hoops to get standard birth control? Why should a for-profit company with a diverse workforce have the right to pick and choose what parts of a federal law to observe? And can a corporate entity really hold religious beliefs, just like a person?
One sure thing is that politics will be affected across the board. There is already controversy brewing over personhood initiatives to give fertilized eggs the same legal rights people have — the idea at the root of the Hobby Lobby case. Though other such measures have been resoundingly defeated, variations will be on the ballot this fall in North Dakota, Colorado and possibly Ohio. In addition, certain candidates are under pressure to reinforce their support of personhood or to back off from past support. (In Colorado the latter category includes Senate nominee Cory Gardner, who will be trying to win moderates this fall and recently said he no longer supports personhood measures. House candidate Ken Buck made the same flip in Colorado in 2010 when he was the Senate nominee, and personhood advocates are going after him now.)
Unsurprisingly, contingents on both the right and the left started raising money feverishly as soon as the Hobby Lobby opinion was released, which happened to be on the last day of the year’s second-quarter fundraising period. “I’m SO furious right now,” began a plea to donors from grass-roots progressive outfit Democracy for America.
There will be plenty of money raised on the right under the banner of religious liberty. But my money’s on this statistic: More than 99 percent of sexually active women in their childbearing years have used contraception. You don't want to pick a fight on this turf.