To call the reactions to the Supreme Court’s Hobby Lobby decision a “firestorm” is to exaggerate the scope of firestorms. The internet is rife with apocalyptic proclamations of the war on women’s reproductive rights.
Calming the storm requires shooting down a huge myth about the opinion:
The Hobby Lobby decision does not destroy women’s access to birth control. No form of birth control has been banned, no prescription has been withdrawn or nullified, and no person has barred from obtaining birth control. The sole issue in the case was whether a family business–organized as a closely held corporation where all shares were held by family members–could be required by the government to pay for insurance coverage that included birth control. (Hobby Lobby challenged only 3 forms of contraception that the family believed to be abortion rather than contraception, but the Supreme Court’s orders implementing its Hobby Lobby opinion indicate that the holding would apply to a closely held corporation that objected to paying for all forms of contraception as well.)
As Megan McArdle points out, probably nearly zero women will lose access to contraception as a consequence of the Hobby Lobby decision. The decision applies only to corporations that are closely held, and there is little evidence that any large proportion of them are controlled by people with long-standing, strong religious objections to contraception that would bring them within the ambit of the Hobby Lobby opinion. Many of those employees who do work for such businesses may share the religious views of their employers and therefore aren’t affected.
The circle of those affected grows even smaller we we consider all the myriad ways that women will continue to access contraception without their employer paying for it. Most of those who are affected will simply continue to purchase contraception themselves as they have done for years and even decades before the Affordable Care Act mandated that employers include it with employees’ health-care coverage. Those so poor as to be unable to purchase contraception are likely eligible for Medicaid coverage, which does cover contraception. And those very few women who meet all the criteria to be affected will be eligible for government programs addressing them specifically.
Hobby Lobby is not an apocalyptic event in the “war on women.” It’s not even a skirmish. At most, it’s a paintball game. Justice Kennedy’s concurrence, taking issue with Justice Ginsburg’s hyperbolic descriptions of the majority opinion, seems accurate.
That said, the opinion is not without potential for broader problems down the road. One prediction–that Hobby Lobby would result in companies denying insurance coverage for blood transfusions–is probably both impossible (because blood transfusions are not a separate line-item in insurance coverage) and legally unlikely (any mandate that insurance coverage cover life-saving blood transfusions would easily pass the same compelling-interest and least-restrictive-means tests that the ACA’s contraception mandate failed). But other concerns, such as what would happen if a closely held corporation refused to pay for HPV vaccinations on religious grounds, are less easily dismissed. The boundaries of the government’s “compelling interests” and the parameters of the “least restrictive means” by which the government can secure those interests will undoubtedly continue to provoke vigorous debate even after the hyperbole (hopefully) fades.
Edited to correct factual error on number of closely held corporations in the U.S. economy.
Jason is an attorney practicing criminal law, civil litigation, and administrative law. Jason formerly worked as a Resident Instructor of International Relations at Creighton University, focusing on civil-military relations and national security strategy. Jason also served 15 years in the United States Air Force, including service at USSTRATCOM, America’s nuclear-weapons command.
Jason lives in Minnesota with his wife, three sons, three dogs, and three cats.