Money, sex, and religion--the Supreme Court's ACA sequel.

The Supreme Court decision in the Hobby Lobby case is in many ways a sequel to the Court’s 2012 decision on the constitutionality of the Affordable Care Act (ACA).1,2 Like the 2012 case, the decision was decided by a 5-to-4 vote, but in the initial ACA decision, Chief Justice John Roberts acted to “save” the ACA.3 Not this time. Then the watchword was “broccoli,” as in forcing people to eat it; this time it is abortion, as in forcing employers to pay for it. To simplify, the choice facing the Court in the Hobby Lobby case was whether to favor the exercise of religion by for-profit corporations (whose owners believe contraceptives that may prevent fertilized eggs from implanting violate their religious beliefs) over the federal government’s attempt to create a uniform set of health care insurance benefits. As recommended by the Institute of Medicine (IOM),4 such benefits include all contraceptives approved by the Food and Drug Administration (FDA) as preventive health care for women. Two editorials neatly summarize the conflicting politics of the decision. According to the New York Times, the “deeply dismaying decision . . . swept aside accepted principles of corporate law and religious liberty to grant owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees . . . [by denying] thousands of women contraceptive coverage vital to their well-being and reproductive freedom.”5 The Wall Street Journal, on the other hand, saw the decision as “narrow [and] an important vindication of religious liberty in this (still blessedly) pluralistic constitutional republic,” noting that “women who work for the small number of religiously oriented businesses will still be able to buy birth control for as little as $9 a month.”6 The majority decision, written by Justice Samuel Alito, is a setback for both the ACA’s foundational goal of access to universal health care and for women’s health care specifically. It is also especially worrisome that abortion is again at the center of the continuing debate over the implementation of the ACA and that the challenge of abortion has been expanded to include birth control.7 This has happened even though, in the opinion of medical experts, the four methods of contraception under scrutiny do not induce abortion; rather, they prevent abortion by preventing pregnancy.4,8 This controversy could occur only because in assessing the competing claims about abortion and birth control, the Court’s majority focused on the religious claims of the corporations without discussing scientific or medical opinions. As Judge Mary Beck Briscoe observed in her dissent in the 10th Circuit, the belief of Hobby Lobby’s owners “is not one of religious belief but rather of purported scientific fact.”9,10