Issues involved in court ruling far from settled

July 1, 2014 

Celebrate it or hate it -- and there are tens of millions of Americans in both camps -- Monday's 5-4 Supreme Court ruling on contraception coverage in employer-provided health insurance hews to the court majority's "corporations are people" philosophy.

As with the much-debated Citizens United decision, which held that corporate and other collective entities have an individual citizen's right to paid political advocacy, Monday's ruling says corporations can invoke religious convictions which the law -- and employees -- are bound to respect.

There is this important distinction: The religious exemption regarding some forms of contraception does not extend to publicly traded corporations. In the case of private-sector establishment of religion, the court has said in effect that some corporations are people -- namely the privately held and mostly smaller ones. (The ACA already exempts faith communities, and other religious-affiliated organizations that provide employee health coverage, from the contraception mandate.)

Despite the sound and fury emanating from both camps, the practical effects of Monday's ruling will likely be something short of social upheaval. (Justice Samuel Alito, in writing for the majority, suggested a relatively simple end-around for contraceptive coverage under ACA.) Yet that has hardly made the predictable hyperbole any more circumspect, or even accurate.

Cecile Richards of Planned Parenthood said, "The thought of your boss telling you what kind of birth control you can and can't get is offensive and it certainly is motivating women to vote." Actually, the boss can dictate only what kinds of birth control he or she will pay for; and polling suggests that young women are, according to the Associated Press, "particularly disengaged from this year's races."

On the other side of the culture war divide, GOP National Committee Chairman Reince Priebus called the ruling "a clear and decisive defeat against Obamacare and a victory for the rights of all Americans." It is neither. It leaves the principal provisions of the Affordable Care Act very much intact; and workers directly affected might reasonably dispute that a gap in their coverage due to somebody else's religion is "a victory for the rights of all Americans."

Hypothetically -- and this is a popular argument among those cheering the court on this issue -- a worker who doesn't want to abide by his bosses' convictions about birth control (or anything else) is free to find employment elsewhere. The reality, of course, is that there's not exactly a jobs buffet out there waiting for people to pick the occupation, and the health plan, of their choice.

This decision will be problematic even if it is constitutionally sound, and the debate will continue over whether this court has reversed a governmental overreach or committed one. What future courts (and companies) will have to resolve is which provisions of employer-employee relations fall under the category of "religious" conviction in the first place -- and whose rights are at stake.

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