Beyond Hobby Lobby









by Amanda Krupman, Digital Communications Manager, Colin Powell School

On Monday, the Supreme Court of the United States issued a highly contentious decision in the Burwell v. Hobby Lobby case, in which the Court ruled 5-4 that a for-profit company can invoke religious beliefs in order to deny paying for otherwise government-mandated contraception to their employees.

Three days later, the Court delivered another ruling on ACA-related contraception, this time an unsigned emergency order for injunction for Wheaton College, a Christian college in Illinois. This decision offered another exemption from the Affordable Care Act's provision of free birth control with all insurance plans. In this case, however, the ruling installs a further barrier to contraception for Wheaton College staff, faculty, and students—and according to a fiercely worded dissent by Justices Sotomayor, Kagan, and Ginsburg, contradicts elements of the Hobby Lobby ruling and "undermines confidence in this institution."

The contradiction of guidelines set forth in the Hobby Lobby case has the Court saying on Monday that for-profit companies citing religious objections to contraceptive methods could employ the workaround already in place for nonprofit religious organizations that, unlike churches, don't qualify for categorical religious exemption: sign a form that transfers the responsibility of paying for and delivering those methods to others (the insurance companies). On Thursday, this endorsement was undermined and confused by the temporary injunction provided to Wheaton College, which honored the college's claim that by signing the religious objection form, they would be complicit in their support of the so-called abortions (which by scientific definition are termination of fertilized and implanted eggs in a woman's uterus) caused by Intrauterine Devices (IUDs) and the morning-after pill (which work to prevent fertilization and implantation, and cannot terminate an already fertilized and implanted egg). In its decision, the Court said that Wheaton College need only to submit a letter to the government stating their religious, non-profit status, which would apparently absolve the institution from any direct facilitation of the objectionable birth control, and put the onus on the government to fill that gap.

So it's ok for for-profit companies to deny employees full health coverage mandated by law because they can call on the same exemptions as religious nonprofits and fill out a form that has the insurance companies pick up the tab. But now filling out that form is in itself problematic, and thereby optional?

The dissent on the order challenged Wheaton's complicity theory by calling on an analogy used by a lower court:

"Suppose it is wartime, there is a draft, and a Quaker is called up. Many Quakers are pacifists, and their pacifism is a tenet of their religion. Suppose the Quaker who's been called up tells the selective service system that he's a conscientious objector. The selective service officer to whom he makes this pitch accepts the sincerity of his refusal to bear arms and excuses him. But as the Quaker leaves the selective service office, he's told: 'you know this means we'll have to draft someone in place of you'—and the Quaker replies indignantly that if the government does that, it will be violating his religious beliefs. Because his religion teaches that no one should bear arms, drafting another person in his place would make him responsible for the military activities of his replacement, and by doing so would substantially burden his own sincere religious beliefs. Would this mean that by exempting him the government had forced him to 'trigger' the drafting of a replacement who was not a conscientious objector, and that the Religious Freedom Restoration Act would require a draft exemption for both the Quaker and his non-Quaker replacement?"

Justice Sotomayor, in her dissent, also called into question the Court's use of its power in this case to block established law:

"Even if one accepts Wheaton's view that the self-certification procedure violates RFRA [the Religious Freedom Restoration Act of 1993], that would not justify the Court's action today. The Court grants Wheaton a form of relief as rare as it is extreme: an interlocutory injunction…in a case in which the courts below have not yet adjudicated the merits of the applicant's claims and in which those courts have declined requests for similar injunctive relief. Injunctions of this nature are proper only where 'the legal rights at issue are indisputably clear.' Yet…no one could credibly claim that Wheaton's right to relief is indisputably clear."

The coverage of the Hobby Lobby case this week has most often framed the case as pitting women's rights against religious rights. That is one framework for understanding and concern, but within this framework the issues are nuanced and have further implications outside of women's health and wellbeing and religious liberty. One is the larger question of corporate personhood: is it logical to afford corporations the same rights as individuals, especially if affording those rights are to arguably infringe on individual rights? The Hobby Lobby ruling could (and most likely will) lead to other for-profit entities invoking conscience to deny same-sex spouses or domestic partnerships the same spousal and partner benefits otherwise extended to different-sex couples.

Indeed, there's seemingly no limit to how far the ruling could be interpreted in supporting any number of so-called religious objections. In the Hobby Lobby dissent, Ginsburg wrote: "In a decision of startling breadth, the court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."

Furthermore, the lawsuit and resulting injunction by Wheaton College, along with the Mother Jones reportage revealing Hobby Lobby to be financially entangled with companies producing the same contraceptive technologies they oppose, are clearly another set of challenges to the Affordable Care Act dressed up as arguments for religious freedom. When abortion opponents realized they might better bring down the rights afforded through the Roe v. Wade decision by obstructive laws and onerous bureaucratic procedures, and saw success in this bit-by-bit dismantling, they've inspired a new generation of legal strategies that can take the same tack. We should all be concerned that with just the right maneuvering and manipulation, these legal challenges can defang even our fiercest protections of equality and liberty.

Teaching Health-Care Rights to Empower Patients

Health-care march. Photo by Neil Parekh/SEIU Healthcare 775NW; courtesy Creative CommonsBy Nur Afsar I worried that even 25 seats would be too many. But as people flooded through the doors, I saw that my worry was unwarranted: We quickly put out more chairs for what was to be an amazing learning experience.

Last week on May 2, my Partners for Change colleagues—Salma Asous, Syed Haider, Jamiela McDonnough—and I led a health-care rights workshop for parents of children enrolled in programs at the New Apartment Settlements' College Access Center in the Bronx. In the presentation titled “Know Your Rights,” we outlined patients’ rights to language access, financial assistance, emergency treatment, and accommodations for disabilities within the health-care system. Many of the parents were Spanish-speaking, so we brought a translator with us. After going over basics, we gave out colored cards corresponding to true and false and quizzed our audience, who answered most questions correctly. I could see my feelings of joy and pride mirrored on my fellow facilitators’ faces: We were making ourselves understood!

I had become interested in becoming a Partners for Change fellow because I was eager to take action. I had taken many courses that addressed how health disparities are linked to socioeconomic status. I was aware of the injustice of low-income minority populations being more likely to have poor health outcomes: They are less likely to be insured and subsequently less likely to have access to a primary-care physician. I couldn’t just sit with this information. What I needed was a plan, a way to help overcome the vast disparities in New York City and make a positive impact. This is exactly what I was able to begin doing through the Partners for Change fellowship.

Nur Asfarco-leads a health-care rights workshop. Photo by Sophie GrayTackling the System In this past year, I’ve learned a lot through my experience working as a Health Leads Advocate at New York Presbyterian’s Washington Heights Family Health Center and in seminars led by Shena Elrington, health justice attorney at New York Lawyers for Public Interest and our leader in residence. We learned about the ins and outs of our health-care system and how the Affordable Care Act (ACA) will bring about changes. In discussions we faced the harsh realities of the system, but Shena never let us leave our seminars without us feeling that students like we are can bring about change.

As a medical student, I was learning all the things I had to know to be a health-care provider, but in our Partners for Change seminars, we were learning about policy. We gained a lot of knowledge (more than I expected!), but what is it really worth if the information can’t be shared with those who really need it?

Stressing Advocacy After the session, there was a time for Q&A, and with Shena’s help, we were able to answer many of the parents’ questions and address their concerns. Some said they had been denied an interpreter when seeking care for their children or themselves. Others said they didn’t know where to go for financial assistance. As I expected, there were some questions about insurance. One person asked, “Why is there an income cut-off? I work hard to make money, why shouldn’t I receive Medicaid.” We explained the federal poverty level and discussed the Medicaid expansion to come through the ACA. Additionally, we addressed other options for people ineligible for Medicaid—undocumented immigrants, for example.

As an aspiring physician, I feel further equipped by my fellowship experience to inform patients of their options and help them maneuver through the changing system so they can take control of their own health. Informing parents of their rights—and steps they can take if their rights are violated—is a major form of patient activation. We stressed that they didn’t need lawyers. They can advocate for themselves, and I feel we went a long way to empower them with the knowledge and tools to do so.

Read more about Nur and our other contributors here.

...With Liberty and Health Care for All

The Patient Protection and Affordable Care Act was enacted in 2010, validated by the U.S. Supreme Court in 2012, and is on its way to having its most significant provisions—including bans on denying coverage because of pre-existing conditions—effective by 2014. All elements of the law are set to be phased in by 2020.

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