After Hobby Lobby: The next fronts in the contraception fight

On Monday, the Supreme Court justices announced their decision in Burwell v. Hobby Lobby, the case questioning whether corporations could deny employees contraception coverage because of religious beliefs. The court delivered a narrow ruling that said closely held corporations -- those where a majority of shares are held by fewer than five people, which happen to comprise at least 90 percent of corporations in the United States -- do not have to pay for contraception coverage under the 1993 Religious Freedom Restoration Act.

Now that the decision has been announced, those fighting on both sides of the issue have already started looking ahead to new battlegrounds.

Signs lie on the ground during a protest in front of the U.S. Supreme Court on Monday. (Mark Wilson/Getty Images)

Religious freedom groups are preparing for the next contraception coverage case, Little Sisters for the Poor v. Sebelius. It's a lawsuit filed by an order of Catholic nuns against the accommodation clause of the Affordable Care Act's contraception mandate. The Obama administration last year offered a compromise to religious nonprofit organizations that did not want to pay for contraceptive coverage because of religious beliefs -- the insurance carriers could pay for these services instead of the nonprofits. This change was acceptable for many organizations, but the Little Sisters -- and at least 45 other religious nonprofits that also filed lawsuits -- did not think the measure went far enough. These employers were still indirectly responsible for their employees contraception usage.

On Dec. 3, 2013, the Supreme Court offered the Little Sisters and their fellow plaintiffs an injunction. The 10th Circuit of Appeals has not yet announced their decision on the case, but Kevin Martin, a partner and co-chair of Goodwin Procter’s Appellate Litigation Practice, thinks the case will be making oral arguments in front of the Supreme Court justices next year.

Eric Baxter, senior counsel at the Becket Fund for Religious Liberty, thinks the Hobby Lobby decision bodes well for the accommodation clause plaintiffs. Since the Hobby Lobby decision, the 10th Circuit Court granted an injunction for the Archdiocese of Cheyenne, Wyo., until its accommodation clause case is decided. The 11th Circuit Court stayed the decision in an accommodation clause case featuring Catholic television station Eternal Word Television Network on Monday, which was scheduled to pay fines by July 1 for not offering contraception coverage. Others think that the Hobby Lobby decision proves that the accommodation clause is "sufficient," giving the plaintiffs in these cases a less persuasive argument.

(The Becket Fund is also getting ready for another religious freedom case that will see the Supreme Court next term. In Holt v. Hobbs, the organization is representing a Muslim man who is fighting the Arkansas Department of Corrections’ no-beard-growing policy, arguing that it violates the Religious Land Use and Institutionalized Persons Act.)

Reproductive rights advocates aren't looking so far ahead, quite yet. "We're not done with this issue yet," Judy Waxman, the organization's vice president for health and reproductive rights, says, referring to the Hobby Lobby decision. "Congress and the Obama administration need to fix this." NARAL Pro Choice America agrees; NARAL president Ilyse Hogue said Monday, "We are looking to Congress to right this wrong.”

Senate Democrats are already planning a legislative response. Washington Sen. Patty Murray -- who joined 18 other senators in filing an amicus brief in support of the federal government in this case -- announced in a press release Monday: "Since the Supreme Court decided it will not protect women’s access to health care, I will. In the coming days I will work with my colleagues and the Administration to protect this access, regardless of who signs your paycheck."

Martin says that if Congress finds a way to cover those employees who work for companies that have found a religious exemption, it wouldn't be met with much resistance; "There is little anyone can do to block that."

Finding out how many workers will be affected by the decision is the next goal of the Guttmacher Institute, a nonprofit studying reproductive health policy.  "We need more knowledge about how this decision will affect people," senior public policy associate Adam Sonfield says. Among the questions Sonfeld has: How many companies will take advantage of this decision? How many workers will be affected? Will the administration expand the accommodation clause to some for-profits? How many nonprofits have taken advantage of the accommodation clause? Is the accommodation clause even working right now? How do we make sure employees and insurance companies know about how the decision affects them? How will employees react to the change in contraception coverage? How will Republicans react to the change in contraception coverage? How will government oversight of these policies work? How does this decision -- which relies upon the federal Religious Freedom Restoration Act -- affect state policies regulating contraception coverage? How does this decision harmonize with the Equal Employment Opportunity Commission's 2000 decision on contraception coverage?

Until some of these questions are answered, Sonfield says, we can't know the wisest policy or legal move to make next.

The issue of contraception won't be confined to legal inquiry and advocacy. Some of the closest Senate races of the 2014 midterms feature Republican candidates who have supported personhood amendments or giving states the ability to regulate contraception coverage. Thom Tillis, who will face incumbent Sen. Kay Hagan in North Carolina this November, told the News Observer earlier this year, “I am pro-life, I believe all life is sacred, and I am proud that we have made real progress on this issue since I am speaker. The country is moving in our direction on this issue.” On Monday, Hagan sent out a press release quickly denouncing the Supreme Court's decision.

In Iowa, Senate candidate Joni Ernst supported adding a Personhood amendment to the state constitution. Colorado senate candidate Cory Gardner withdrew his support for a contraception amendment after learning it could affect contraception coverage. It's a volatile issue that doesn't often make or break candidates, but in close races like these -- especially after the outcome of the Hobby Lobby case and Americans' approval of the birth control mandate -- advocates on both sides of the issue might try to change that.


Jaime Fuller reports on national politics for "The Fix" and Post Politics. She worked previously as an associate editor at the American Prospect, a political magazine based in Washington, D.C.



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