Wonkbook: Everything you need to know about the SCOTUS contraception ruling

July 1, 2014

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Wonkbook's Top 5 Stories: (1) The Hobby Lobby ruling's policy and legal fallout; (2) what the public-sector union ruling means; (3) yup, immigration reform's really dead; (4) your government and tech company are watching you; and (5) the next VA secretary's credentials.

1. Top story: The Hobby Lobby contraception-mandate ruling's reach is both wide and narrow

A symbolic blow to the health-care law. "Two years ago, the court, while upholding the constitutionality of the Affordable Care Act, also gutted the law’s mandatory Medicaid expansion, severely limiting the law’s reach. By contrast...the contraception provision was not part of the main law but was laid out in regulatory language issued by the Obama administration. Millions of women who receive birth control at no cost through their company health plans are likely to keep it. Still, women who work for closely held, for-profit companies whose owners have religious objections to contraceptives may feel an impact. The ruling also is a symbolic setback for a law that has survived a series of legal and political challenges since its enactment four years ago but today stands not entirely whole." Sandhya Somashekhar in The Washington Post.

@SCOTUSblog: Don’t overread Hobby Lobby. The Court makes clear women can still get coverage and it isn’t opening the door wide to religious claims.

Primary source: The full text of the Supreme Court's ruling. The Washington Post.

Explainer: Answers to questions about Supreme Court’s decision on contraception mandate. Sandhya Somashekhar in The Washington Post.

@sahilkapur: Closely held corporations can't be forced to pay for contraception. John Roberts tipped his hand on this at arguments http://bit.ly/1hswCrO

How many people will be affected? In theory, a lot. In practice, though... "Here's how the IRS defines 'closely held corporation': Has more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and Is not a personal service corporation. Basically, 'closely held' is a term that covers as much as 90 percent (or more) of all businesses....But...publicly traded companies tend to have many more employees than private ones. Still...closely held corporations employed 52 percent of the American workforce....In other words, not so narrow. But does that mean the employers of half of all Americans will suddenly nix contraception coverage? Of course not, for several reasons." Aaron Blake in The Washington Post.

...9 in 10 employers already covered it before the Obamacare mandate. "Even before the mandate under the Affordable Care Act kicked in, nearly 90 percent of U.S. employers — large and small — covered contraception. And very few, or 12 percent, had some kind of limit on contraceptive coverage, according to a study of 779 employers by benefits consultancy Mercer in March of 2011. Contraceptives were covered by 88 percent of respondents with 'little variation in prevalence by employer size,' Mercer said. 'Only 12% of those providing coverage placed any type of limit on the coverage in 2010,' the Mercer report said. 'None of the respondents with limits chose to drop coverage in 2011. While 10% dropped the use of coverage limits in 2011, most (90%) made no changes." Bruce Japsen in Forbes.

The Administration's 'accommodation' could be the next legal battle. "The justices noted several times on Monday that religious-affiliated employers...already have a sort of middle-ground option on the contraception mandate. The White House granted those employers an 'accommodation' in response to their religious objections to certain forms of birth control. The Supreme Court specifically mentioned that accommodation in its Hobby Lobby ruling, citing it as proof that the administration can advance its policy goals without forcing all employers to pay for contraception coverage....That might seem like Alito providing a clear alternative for the White House: Just use the accommodation you've already created....But...it didn't specifically say whether that policy is legal." Sam Baker in National Journal.

@SCOTUSblog: The Obama Administration is almost certain to provide contraception coverage to women covered by today’s decision.

ICYMI: Round 2 of the contraception mandate wars is brewing. Lyle Denniston in SCOTUSblog.

The 49-page Supreme Court ruling mentions women just 13 times. "It's simply notable that all three of the court's current female justices dissented from the court's opinion....In the long line of decisions about women's reproductive rights that have not been made by women, this is yet another. The difference between the majority opinion of five of the court's men and the dissent of its three women (plus Justice Stephen Breyer) is instructive. The majority opinion is largely about the rights of corporations, employers and those with religious beliefs; the dissent is very much about women — about their health, the sums they spend to access care and the costs they pay when none is available." Emily Badger in The Washington Post.

Could closely held firms still have to provide coverage in many cases anyway? "The Supreme Court’s decision Monday saying that 'closely held corporations' do not have to abide by the contraceptive coverage mandate in the Affordable Care Act may not give those firms the ability to stop providing that coverage after all. More than half the states have 'contraceptive equity' laws...that require most employers whose health insurance covers prescription drugs to also cover FDA-approved contraceptives as part of that package. Unlike the ACA, those laws do not require that coverage to be available without deductibles or co-pays. The court’s decision Monday does not directly affect those state laws, several analysts say." Julie Rovner in Kaiser Health News.

@petersuderman: Looks like the SCOTUS Hobby Lobby decision may have followed the argument outlined by Cato here: http://reason.com/blog/2014/03/25/does-obamacares-contraception-mandate-vi

The definition of contraception was central to the case, but the justices didn't clarify it. "This case centers around specific religious objections to contraceptives that prevent an egg from implanting in a woman’s uterus, which plaintiffs believe are tantamount to abortion....But not everyone agrees on this definition...Even among members of the same faith, opinions differ....While the Court has clarified these businesses’ right to religiously object, it doesn’t offer an opinion on a standard definition of conception. So people will continue to be divided on whether these drugs are abortifacients or not, based on their own perceptions of the reproductive process." Julie Beck in The Atlantic.

@BCAppelbaum: Corporations are people and some of them are religious. pic.twitter.com/79rrgsWcyD

How a 1993 religious-freedom law factored in. "The high court's decision in the Hobby Lobby case refocused attention on the Religious Freedom Restoration Act that passed Congress overwhelmingly in 1993, with the support of some lawmakers still serving in both the House and Senate. The statute requires federal laws to accommodate individuals' religious beliefs unless there is a compelling interest at stake that can't be attained through other means. While Republicans on Monday triumphantly pointed to the law's role in the decision, Democrats said they hadn't anticipated the law would be so broadly expanded....The bill passed the House on a voice vote and was signed into law by President Bill Clinton." Kristina Peterson in The Wall Street Journal.

Analysis: Hobby Lobby and claims for religious exemptions from anti-discrimination laws? Kevin Russell in SCOTUSblog.

Explainer: After Hobby Lobby, here are four other festering church-state issues. Michelle Boorstein in The Washington Post.

How did birth control become as partisan a policy issue as it is a religious one? "Of course, whether Americans identify as Dems or Republicans to begin with is correlated with how often people attend church, and Republicans on average are significantly more religious than Democrats. For example, a Values and Beliefs survey, found 42 percent of Republicans report attending church weekly, compared with just 29 percent of Democrats. So it's little wonder that partisan attitudes on contraception track levels of religiosity so closely. The question of which came first, the partisanship or the religiosity, then becomes a chicken-and-egg one." Lucia Graves in National Journal.

Do the American people agree with SCOTUS? Yes, and no. "When the issue of requiring employers to cover birth control first started popping up, it seemed the American people were largely on board. Polls from CBS News/New York Times and the Kaiser Family Foundation in February 2012 both showed about two-thirds (66 percent) of the American people agreed with such a requirement....None of those questions, however, mentioned religion. And that's where things get more complicated. A March 2014 poll, again from CBS News, showed that 42 percent of Americans said employers could be exempt from this requirement 'based on religious objections,' while 51 percent said they should still have to cover contraception. Not as overwhelming." Aaron Blake in The Washington Post.

Other legal reads:

Long read: How Eric Holder outlasted his many critics. Glenn Thrush in Politico Magazine.

KLEIN: Why 2014 elections are so important, in one SCOTUS decision. "It's easy to downplay the weight of the 2014 election. Nate Silver called it 'the least important election in years,' and it well might be....Legislative gridlock will persist. But today's 5-4 Supreme Court decisions are a reminder that the 2014 election could prove one of the most important in decades. Ruth Bader Ginsburg is 79. Antonin Scalia and Anthony Kennedy are both 76. Stephen Breyer is 70. John Roberts could decide he wants to live his dream of being a Hollywood sound engineer before it's too late. (Silver, I should say, mentions the possibility of a Supreme Court vacancy in his piece.)" Ezra Klein in Vox.

COHN: The pitfalls of employer-provided care. "The fundamental problem here is the way the U.S. has decided to provide its new entitlement to health insurance....For the non-elderly, we’ve decided that most working-aged people should get coverage through their employers, with the employers retaining lots of latitude over how to do it. There are practical and defensible reasons for doing this....Forcing everybody to go onto a new, government-run program would have caused a great deal more disruption. But this arrangement also creates complications. What happens when employers aren’t enthusiastic about providing that coverage — or, as in the Hobby Lobby case, about providing one particular part of it?" Jonathan Cohn in The New Republic.

PONNURU: What the ruling doesn't do. "Here's an easy way to cut through the arguments and counterarguments surrounding today's Hobby Lobby ruling from the U.S. Supreme Court: Think back to 2012. Does the court's ruling...represent a terrible blow to women's rights? Not really: Women have the same rights they had all through President Barack Obama's first term. At that time, federal law did not require most employers to cover contraceptives. Does the ruling mean that employees' use of contraception depends on the religious views of their bosses? Again, no more than it did in 2012." Ramesh Ponnuru in Bloomberg View.

CARROLL: How the decision could limit birth-control access. "The Supreme Court ruling in the Hobby Lobby case raises at least two questions: How will it affect access to contraception, and what do the drugs and devices the company objected to on religious grounds actually do?...Regardless of the data, or lack of it, many still believe that these forms of contraception are different than others. Today, the Supreme Court gave those beliefs weight. This seems likely to make it harder for women to get contraception in the future." Aaron E. Carroll in The New York Times.

Top opinion

NOCERA: From 9/11 to BP to GM. " Feinberg unveiled his latest effort, a new fund, proposed and paid for by General Motors, to compensate victims of its ignition-switch failures....It is very much tied to the tort system, as Feinberg was quick to concede....The family of a married father of two who had a $50,000-a-year job — and who died in an ignition-switch accident — would potentially get several million dollars more than, say, the family of an unmarried, out-of-work 29-year-old. An investment banker who was seriously injured would get more than a laborer who was seriously injured because the investment banker’s potential earnings were higher than the laborer’s. That may not necessarily be fair, but it is the calculation that courts use...in the tort system." Joe Nocera in The New York Times.

BARSHEFSKY And YONGTU: Why a trade deal with China is a win-win. "The treaty should be a very high priority for both governments. The mutual economic benefits are there, provided that the protections of a BIT are in place. An agreement that opens China's economy further to foreign investment also would help to implement economic reforms aimed at moving China from an export-oriented manufacturing economy to a more balanced economy based on domestic consumption and services. And a treaty that further encourages more Chinese investment in the U.S. would help to infuse capital into the American economy and spur much-needed economic growth." Charlene Barshefsky and Long Yongtu in The Wall Street Journal.

BLATTMAN: Let them eat cash. "Globally, cash is a major tool to fight extreme poverty. The United Nations is handing out ATM cards to Syrian refugees alongside sacks of grain. The evidence suggests these cash programs work. There have been randomized trials of cash grants to poor Mexican families, Kenyan villagers, Malawian schoolgirls and many others. The results show that sometimes people just eat better or live in better homes. Often, though, they start businesses and earn more....I haven’t spent any time with the homeless in the United States. Maybe I’d see that the differences are profound. But I ask myself: If homeless people and drug users in Liberia don’t misuse cash, why would we expect the homeless in New York to waste it?" Christopher Blattman in The New York Times.

SAMUELSON: The business cycle — RIP? "As a tool for analyzing and influencing the economy, is the business cycle outdated? Yes, says the Bank for International Settlements (BIS) in Basel, Switzerland. Unless you’re deep into today’s economic debates, you’ve probably never heard of the BIS. But its annual reports — the latest is just out — are eagerly awaited because the BIS plays an informal role as loyal opposition to mainstream economics. This year is no different. For the mainstream, smoothing the business cycle is job one....The record doesn’t impress anymore. Economists’ confidence has been shaken; so has the public’s." Robert J. Samuelson in The Washington Post.

Animals interlude: Is this the summer of bears? A Washington Post special investigation.

2. How the Harris ruling affects unions

Unions duck biggest threat from Supreme Court — for now. "The Supreme Court ruled that thousands of home health-care workers in Illinois cannot be required to pay dues to cover the cost of collective bargaining. The ruling is a setback for unions that in recent years have increased their ranks and financial prowess by organizing hundreds of thousands of home health-care workers who were required to pay dues, whether or not they chose to be members. Now those workers can decide whether they want to pay union dues from their often meager paychecks, a change labor groups worry could cause their memberships and incomes to shrink. Still, the court’s decision contained a silver lining for organized labor." Michael A. Fletcher in The Washington Post.

@StevenTDennis: Bad week for Obama in SCOTUS. Union dues, contraception, recess appointments. But coulda been worse for WH.

Primary source: The full text of the Supreme Court's ruling. The Washington Post.

It could have been much worse for unions. Here's why. "The court came close to overturning Abood vs. Detroit Board of Education, the 1977 decision allowing states to require their employees to pay union dues, but fell back on harshly criticizing it instead as poorly reasoned and based on “questionable foundations.” It limited this decision to quasi-public employees paid with government funds but operating outside of direct government supervision." Daniel Fisher in Forbes.

Charts: Unions didn’t dodge a bullet at the Supreme Court today. They dodged the guillotine. Philip Bump in The Washington Post.

How one key union is sweating the ruling. "The Service Employees International Union has been one of the fastest-growing unions in the country, a success story during a challenging time for labor. But the SEIU may have trouble maintaining its growth after Monday's Supreme Court decision allowing home healthcare workers to opt out of paying union fees even if the union bargains on their behalf. If history is any guide, once workers can opt out of paying fees, they also opt out of belonging to the union....About 20% of the SEIU's 2.1 million members are home healthcare workers." Alana Semuels in the Los Angeles Times.

Why the ruling doesn’t impact federal unions. "The Supreme Court’s ruling Monday regarding public-sector unions doesn’t impact federal government labor organizations and employees. Here’s why: While the 5 to 4 decision covers a segment of public workers, federal workers and their representatives such as the American Federation of Government Employees and the National Treasury Employees Union are regulated by the 1978 Civil Service Reform Act. In many ways, the law has federal workers where the court’s majority wants them to be." Marcia Davis in The Washington Post.

Teachers unions in Calif., beware. "Activists behind a lawsuit pending in federal court in California say the Harris ruling has set the stage for their complaint, which challenges the constitutionality of a California requirement that public school teachers must pay union dues regardless of whether they choose to join the union. In fact, the majority opinion criticized as 'questionable' the 1977 Supreme Court decision in Abood v. Detroit Board of Education that gave states the authority to compel public employees to pay union dues." Lyndsey Layton in The Washington Post.

ROSENFELD: No, the Supreme Court didn't just kill public-sector unions. "Both sides are overreacting to the decision. For the U.S. labor movement, Monday’s ruling does not mean the sky is falling — any more than it already was. For unions and their allies to take from the ruling the idea that further organization of home health-care providers is doomed would be doing their opponents’ bidding. Why? Despite all the heated rhetoric on both sides of the union divide, there isn’t much evidence that 'right-to-work' laws actually reduce union representation." Jake Rosenfeld in Politico Magazine.

Science interlude: Why do ice cubes crack in drinks?

3. It's official: Immigration reform is dead. What's next?

The clock has run out on immigration reform. "Time hasn’t been on President Barack Obama‘s side. Once again, Mr. Obama tried to reach a deal with Republicans on one of his signature legislative priorities — and once again, the passage of time only seemed to make a deal more unlikely....Mr. Obama on Monday declared his efforts to win immigration legislation dead. As he did during his gun-control push in 2013, he tried giving Republicans time and political space to reach a deal. And like that effort, this ended with an angry president expressing his disappointment with Congress during an afternoon Rose Garden address....On Monday, he said House Speaker John Boehner (R., Ohio) told him last week there would be no vote on immigration this year." Reid J. Epstein in The Wall Street Journal.

Obama: I'll do it myself. "The president said he has directed Attorney General Eric Holder and Homeland Security Secretary Jeh Johnson to move enforcement resources to the southern U.S. border, to focus on removing undocumented immigrants who have committed serious crimes....Obama also is asking his advisers to find steps...to change the U.S. immigration system for the millions of undocumented immigrants...who haven’t broken laws....Obama separately asked Congress for emergency funds and legal authority to stem an increasing flow of undocumented immigrants — especially children traveling without adults — from Central American countries." Angela Greiling Keane and Derek Wallbank in Bloomberg.

Explainer: 4 ways Obama can reform immigration himself. Danny Vinik in The New Republic.

Once again, Obama is facing pressure from immigration activists. "More than 52,000 unaccompanied children and 39,000 women with children have been apprehended at the border this year....The administration also is preparing to ask Congress for statutory authority to more quickly deport the children. That decision has alarmed human rights advocates who say they are at risk of being returned to dangerous communities. During a conference call earlier Monday, some advocates said they would not accept a policy in which the White House toughens its stance on the children at the border while providing enforcement relief for adults who have lived in the country for a long time." David Nakamura and Zachary A. Goldfarb in The Washington Post.

News analysis: Obama's no-win immigration predicament. Frank James in NPR.

Memo to GOP: Block reform at your peril. "The collapse of Mr. Obama's top legislative priority is a win for conservatives....It also is a victory for Republicans who wanted to avoid a divisive immigration debate in an election year. But it leaves Republicans with the same problem they faced in the presidential election two years ago — a disadvantage with the growing bloc of Hispanic voters. Many in the GOP have cautioned that the party won't win another national election unless it finds a way to improve the party's standing with Latinos. That isn't possible, many caution, without passing an immigration bill." Laura Meckler and Janet Hook in The Wall Street Journal.

Internet confusion interlude: Dear Internet: SCOTUSblog is not the Supreme Court.

4. The government is watching you, and so are your tech companies

Court gave NSA broad leeway with foreign surveillance, top-secret documents show. "The United States has long had broad no-spying arrangements with those four countries — Britain, Canada, Australia and New Zealand — in a group known collectively with the United States as the Five Eyes. But a classified 2010 legal certification and other documents indicate the NSA has been given a far more elastic authority than previously known, one that allows it to intercept through U.S. companies not just the communications of its overseas targets but any communications about its targets as well." Ellen Nakashima and Barton Gellman in The Washington Post.

Data on 'backdoor' surveillance of Americans released. "Last week, the government released a separate report revealing that U.S. spy agencies have spied on the Internet communications of tens of thousands of Internet users around the world. But Monday's report...provides the clearest picture yet of the number of Americans affected by the 702 program. In 2013, the NSA conducted 198 searches of the contents of U.S. communications data under the 702 program. By comparison, it allowed about 9,500 searches of metadata...acquired via 702 in 2013. The CIA conducted 'fewer than 1,900' searches of U.S. communications through 702 in 2013. The FBI, meanwhile, said it does not maintain such information." Dustin Volz in National Journal.

Primary source: The letter. The Washington Post.

In defense of Facebook's newsfeed study. "Did Facebook overstep its bounds when it ran a secret psychological experiment on a fraction of its users two years ago? That's the question at the heart of an Internet firestorm of the past few days. The consensus is that Facebook probably did something wrong. But what, exactly? To say this is one more example of Facebook prioritizing power over privacy is to vastly oversimplify what's going on here. The reality is that people are objecting for a lot of reasons. Whatever your gut feelings about Facebook, don't give into them. Yet." Brian Fung in The Washington Post.

Google's Street View snooping problem that won't go away. "Google (GOOG) is going to have to keep talking about how the cars it used to build its mapping service drove around sucking in personal information from unencrypted Wi-Fi networks. The Supreme Court refused to hear the company’s appeal that such activity wasn’t a violation of the federal Wiretap Act, which means that a potential class-action suit can proceed. Even among Silicon Valley’s litany of privacy intrusions, this flavor of snooping stood out....The Supreme Court’s action, however, is no guarantee that Google has much beyond embarrassment to fear from Joffe’s case. The suit has yet to succeed in being certified as a class action." Joshua Brustein in Bloomberg Businessweek.

Other tech reads:

EU slams U.S. over Microsoft privacy case. Richard Waters in The Financial Times.

New NSA chief calls leaks from Snowden manageable. David E. Sanger in The New York Times.

Supreme Court interlude: The Bible was at the Supreme Court today. And it had legs.

5. What could the VA secretary nominee bring to the job?

VA nominee faced criticism at P&G. Is he a better fit for a government agency? "Mr. McDonald had critics at Procter & Gamble, but on Monday some analysts, including one who was a harsh judge of his tenure there, said that trying to turn around a government bureaucracy might be more suited to Mr. McDonald’s skills. There is little dispute that as the nation’s largest health care and workers’ compensation and disability system, the V.A. presents a challenge vastly different from selling toothpaste and diapers. The question now is how Mr. McDonald will try to steer the department back on course." Richard A. Oppel Jr. in The New York Times.

Despite the criticism, what could McDonald bring to the VA? "McDonald had to deal with many different stakeholders, including plenty who disagreed with him — something he would surely face as the leader of an embattled agency under fire from both sides on Capitol Hill. His outsider status and his experience with P&G's very process-driven culture could also be an asset....If McDonald is confirmed, one thing VA employees will have to look forward to is a leader whom Anthony calls 'the most responsive person I've ever seen in a senior leadership position.'...And McDonald, it appears, has taken a lesson from those criticisms that he should have moved more quickly at the helm of P&G." Jena McGregor in The Washington Post.

Explainer: The four biggest challenges the next VA secretary faces. Jordain Carney in National Journal.

McDonald has given contributions to Republicans in the past. Here's why that matters. "The former chairman, CEO and president of Procter & Gamble has contributed to the campaigns of House Speaker John Boehner and Sen. Rob Portman, both Republicans from Ohio....The problems at VA have concerned both Republicans and Democrats, but McDonald’s political giving history and ties to Portman and Boehner could give him a boost as the Obama administration tries to reverse the department’s woes." Catalina Camia in USA Today.

Other health care reads:

Slow growth of U.S. health spending mirrors other countries. Marie French in Bloomberg.

Vaccine side effects extremely rare, study says. Liz Szabo in USA Today.

World record interlude: Is this the world's shortest cat?

Wonkblog roundup

The 49-page Supreme Court Hobby Lobby ruling mentioned women just 13 times. Emily Badger.

The birth control fight isn’t over. Jason Millman.

The fine line between sugar-coating and panic on climate change. Lori Montgomery.

Liberals are more likely to use public transit than conservatives. Emily Badger.

How much your meat addiction is hurting the planet. Roberto A. Ferdman.

Supreme Court sides with employers over birth control mandate. Jason Millman.

Et Cetera

Long read: How politics can derail the regulatory science on chemicals' risks, endangering public health. David Heath in Center for Public Integrity.

A grieving father pulls a thread that unravels illegal bank deals. Jessica Silver-Greenberg and Ben Protess in The New York Times.

U.S. jobs growth likely to be relatively strong in June. Lucia Mutikani in Reuters.

BNP to pay almost $9 billion to end U.S. probe. Tiffany Kary, Del Quentin Wilber and Patricia Hurtado in Bloomberg.

64 colleges are now under investigation for their handling of sexual assaults. Tyler Kingkade in The Huffington Post.

Got tips, additions, or comments? E-mail us.

Wonkbook is produced with help from Michelle Williams and Ryan McCarthy.

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