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The Supreme Court decision in Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores, Inc., et al. (5-4 decision), 573 U.S. ___ (2014) is ominous. Not only is the decision, and its interpretation of the Religious Freedom Restoration Act (RFFA) a blow to a woman's access to preventive and contraceptive care, its more far-reaching implications are yet to be seen.[1]  In the words of Justice Ginsburg, in her dissent:

[W]ould the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah's Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus; and vaccinations (Christian scientists among others)?

Ginsburg, dissenting at Pg. 33-34.[2]

The key issue in the Hobby Lobby case was whether a closely held, for-profit corporation is exempt from providing health coverage for contraceptive devices that may have the effect "of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus" and whether paying for such devices violates the sincerely held religious beliefs of the owners of such a closely held corporation in violation of the Religious Freedom Restoration Act of 1993 (RFRA) [3]. The provision at issue in the Hobby Lobby case is included in the Patient Protection and Affordable Care Act of 2010 (ACA) and requires employers to pay for such contraceptive devices without "cost sharing requirements."[4]

Writing for the majority (joined by Justices Roberts, Scalia, Kennedy, and Thomas), Justice Alito found that the Secretary of the Department of Health and Human Services (the Secretary) cannot lawfully mandate closely held, for-profit corporations, to provide health insurance coverage for "methods of contraception that violate the sincerely held religious beliefs of the companies' owners;"[5] that doing so violates the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. §2000bb et seq.[6]

In a concurring opinion, Justice Kennedy states that although the HHS provision at issue furthers an important governmental interest in regards to the health of female employees (as is required by the RFRA), the governmental failed to show that the mandate was the least restrictive means to further this compelling interest.[7]  Kennedy also states "the Court's opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent."[8]  Finally Kennedy suggests that an alternative to employee-covered contraceptive care "is for the Government to create an additional program."[9]

In her dissenting opinion, Justice Ginsburg (joined by Justices Sotomayor, Breyer, and Justice Kagan, with Justices Breyer and Kagan joining in Ginsburg's dissent, except in Part II-C-1) begins her dissent by stating that the majority's decision is one of "startling breadth."[10]  She then goes on to state that the ACA covers, without cost sharing, various preventive care and screening benefits particular to women's health; that these benefits were added to the ACA through the Women's Health Amendment, proposed by Senator Mikulski; that the amendment addresses "the disproportionate burden women carried for comprehensive health services and the adverse health consequences of excluding contraception from preventive care available to employee's without cost sharing."[11]  For Justice Ginsburg, the Hobby Lobby exemption "would deny legions of women who do not hold their employers' beliefs access to contraceptive coverage that the ACA would otherwise secure."[12]

The Hobby Lobby decision creates an exemption under the ACA for closely held for-profit corporations to deny health coverage to their employees of certain procedures or devices that violate the owners "sincerely held religious beliefs."  Under the RFRA, in order to overcome the owner's religious objections to providing certain methods of birth control, the government must prove that requiring owners to provide certain methods of birth control "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."[13]

Medicare advocates should pay close attention to the design of health benefits packages of closely held, for-profit corporations, particularly as those packages may be part of a coordination of benefits regimen involving Medicare and private health coverage.  The lack of reproductive health care coverage, including contraception, may well place women employees and female children on their plans at significant health and employment disadvantage. 


Too often people with low and moderate incomes fail to get the health coverage they need.  Women are frequently harmed the most by lack of adequate health care.  In addition to their own health concerns, they are usually the gender responsible for family-planning and family care-taking. The Supreme Court's decision in Hobby Lobby reduces women's rights and erodes women's access to health care.

The Hobby Lobby decision advances corporate rights over women's rights.  But corporations don't bleed; they don't get pregnant; they don't take care of children and parents.  Women do.

Thank you to Sophia Schechner, CMA Health Policy Fellow, for her work on this Alert.

[1] The RFRA can be found at 42 U.S.C. §2000bb, et seq.,  Chapter 21B (Religious Freedom Restoration),
[2] The slip opinion, including the syllabus, is available at
[3] Pg. 1-2 of syllabus.
[4]See 42 U.S.C. §300-GG,
[5] Pg. 1 of the Syllabus.
[6] See Chapter 21B (Religious Freedom Restoration)
[7] Pg. 2-3 Concurring opinion
[8] Concurring pg. 1
[9] Concurring pg. 4
[10] Pg. 1 dissent
[11] Pg. 5 dissent
[12] Pg. 8 dissent


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