Analysis: Myths and spin abound on Supreme Court contraceptive decision

Half-truths and spin from both political parties have quickly come to dominate the debate over the Supreme Court decision on religious exemptions to the rule on insurance plans covering contraceptives.

Both sides want to use the decision to motivate key blocs of voters in close elections this fall — religious conservatives for the Republicans, unmarried women for the Democrats. In that battle, accuracy about legal issues takes a backseat.

Herewith, an effort to sort out some often-repeated claims:

Doesn’t the decision apply to only a few forms of contraception?

No.

As with most political claims, this one, which has become a favorite talking point for conservatives, starts with a nugget of truth and rapidly moves beyond it. The accurate part is that the families who brought the cases to the high court, one of which owns the Hobby Lobby chain of stores and another that owns a woodworking business called Conestoga Wood Specialties, object to four contraceptive methods. They believe those four, intra-uterine devices and so-called morning after pills, cause abortions by preventing a fertilized egg from implanting in the uterus.

But nothing in the court’s opinion limits the ruling only to those methods. Another person who owns a company could assert a religious objection to five or six or to all types of birth control. Those claims would be just as valid.

“It is not for us to say” that a litigant’s “religious beliefs are mistaken or insubstantial,” Justice Samuel A. Alito Jr. wrote for the court’s majority.

Aren’t the plaintiffs wrong to believe that IUDs and morning-after pills are abortifacients?

That argument, frequently raised by opponents of the court’s ruling, involves a disputed point. Legally, however, it makes no difference.

Most experts in the field say that the birth control methods in question usually work by preventing fertilization, not by keeping a fertilized embryo from implanting. But “usually” doesn’t rule out the possibility that the devices might sometimes prevent implantation.

In any case, what matters for the court’s decision is that the people raising the objection have a “sincere” religious belief, not that the belief is scientifically proved. Many religious beliefs can’t be proved by science, after all, but they’re protected nonetheless.

How can the Supreme Court say that corporations are “persons” with rights?

On the left, the idea that “corporations are people,” as Mitt Romney once put it, generates outrage, but it’s hardly new, nor controversial in other applications.

Take this news organization, for example. Like most, it’s a corporation, but few people would argue that its corporate status prevents it from being covered by the 1st Amendment’s protection for freedom of the press. Similarly, even though many medical offices and most hospitals are organized as corporations, police need a warrant before searching through medical files because the 4th Amendment protects corporations just like individuals.

What was new in this case was the question of whether for-profit corporations can assert rights under a 1993 federal law called the Religious Freedom Restoration Act. The five justices in the majority said yes. Two justices, Ruth Bader Ginsburg and Sonia Sotomayor, said no. Two others, Justices Stephen G. Breyer and Elena Kagan, didn’t take a position on that issue because they felt it wasn’t necessary to address it.

Doesn’t the ruling apply only to “closely held,” family owned companies?

No.

Hobby Lobby and Conestoga are closely held companies. But the court’s opinion applies to all corporations. As a practical matter, as Alito noted, it’s not very likely that publicly traded companies will have stockholders who agree sufficiently on religious matters to take a position on issues like birth control. But, if they did, nothing in the court’s opinion would stop them from asking for an exemption.

Will the decision deprive tens of thousands of women of insurance coverage for birth control?

Probably not.

A key point for the justice with the swing vote in the case, Anthony M. Kennedy, was that the Obama administration already has an alternative way to provide insurance coverage to some women whose employers object to paying for birth control. That alternative should be extended to employees of companies like Hobby Lobby, Kennedy said.

Under the alternative plan, which currently covers religiously affiliated nonprofit employers such as charities and schools, the employer certifies that it objects to paying for some or all birth control devices. At that point, the company’s insurer steps in and provides the same coverage free of charge.

Why would insurers do that? The administration argues that they should because covering contraceptives actually saves insurers money — birth control is a lot cheaper than pregnancy. Whether that cost-saving theory really holds up is unclear, but so far insurers appear to be willing to go along.

That “existing, recognized, workable, and already-implemented framework to provide coverage” achieves the government’s goal and “does not impinge on the plaintiffs’ religious beliefs” because it does not require them to spend their own money to provide coverage, Kennedy wrote. That should solve the problem, he said.

Women’s advocacy groups aren’t convinced that everything will be as smooth as Kennedy seemed to think, but chances are good that the administration will follow his road map. That could significantly limit how many women actually lose coverage.

Isn’t that alternative process being challenged in court by some religious groups?

Yes, quite a few groups have challenged the administration’s plan. Kennedy’s apparent endorsement of it seemed to telegraph that those challenges won’t succeed. On Thursday, however, the court raised new doubts about how it would resolve those cases, granting a temporary injunction to an evangelical Protestant college in Illinois that allowed the school to continue to resist the plan. Justices Sotomayor, Ginsburg and Kagan heatedly dissented from the unsigned order.

Aren’t birth control devices cheap enough that women can afford them without insurance?

Some are inexpensive. But IUDs can cost more than $1,000 because of the need to have a doctor properly insert them, Ginsburg noted in her dissent.

More importantly, that argument gets to a central point about health plans in the U.S. Lots of preventive care, such as regular checkups, cancer screening and blood pressure tests, is relatively inexpensive — certainly cheaper than major medical procedures.

Many Americans could afford routine preventive care without insurance, and some conservative policy experts have argued that the healthcare system would work better if they did. Insurance should cover only big-ticket items such as catastrophic illnesses or serious accidents, that view holds.

But that position has little political support. Even before the Affordable Care Act many medical plans covered preventive care because it saves money and makes people healthier. The healthcare law took that one step further and required health plans to cover basic preventive care free of charge to encourage people to take advantage of it.

The Obama administration included birth control on the list of preventive care that needs to be covered, and justices on both sides of the case agreed that the government has a “compelling interest” in doing so in order to protect women’s health.

Won’t the ruling allow religious claims for exemption from all sorts of other laws?

Yes, but many of them won’t win.

The court’s ruling will allow more companies to get their day in court to assert religious claims for opting out of other laws they don’t like. That will mean a lot of lawsuits.

But the ruling doesn’t say religion holds a trump card that always wins. Instead, it says that courts need to weigh how much of a burden a particular law imposes on religious belief against the government’s need to achieve the law’s goals.

In this case, the majority said that the balance tilted in favor of the religious objectors, in part because the government, as Kennedy wrote, had another way to achieve its goal. Often, that may not be the case.

Doesn’t all this controversy just prove that the country would be better off not relying on people’s employers to provide health coverage?

Some advocates of single-payer, government-run healthcare have forcefully made that argument, saying that the Hobby Lobby case provides further proof of why it makes no sense to rely on millions of individual employers, all with differing views of what’s appropriate, to provide insurance.

But caveat emptor. Switching to a government-run system, assuming that such a system could win political support, would not make religious objections to contraception or other controversial aspects of healthcare go away. Instead of being hashed out — and sometimes compromised — in individual workplaces, the debates would take place in Congress.

“Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests,” Kennedy wrote in his concurrence.

In a huge, diverse country, which includes ardent secularists along with devout religious believers, striking that balance will never be simple, regardless of what form the insurance system takes.

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