By Bill McColl
Director of Political Affairs
AIDS United and other public health advocates have been expressing concern about Monday’s Supreme Court decision in the case of Burwell vs. Hobby Lobby. The decision extends rights under the Religious Freedom
Restoration Action (RFRA) to closely held corporations by exempting them from complying with the Affordable Care Act’s requirement that insurance policies
must include cost-free access to contraceptive care. The ruling, written by Justice Alito, uses the RFRA to extend religious freedom rights to
closely held corporations
, which account for as many as 90% of all corporations, for the first
“AIDS United is especially concerned that the court has directly invited lawsuits to find ways to expand the religious exemption, which could affect
HIV/AIDS prevention, treatment and care,” said Ronald Johnson, AIDS United’s Vice President of Public Policy.
The case involved three different companies that objected to paying for certain types of birth control which they regarded as akin to abortion. The
majority opinion of the five justices states that since the federal government could pay for contraceptives directly or could require insurers to make such
coverage available using the same exemption that has been granted to religiously based non-profit corporations that the imposition on the corporation is
not the least restrictive means to fulfill the goal.
The justices additionally stated that the decision was closely limited specifically to contraceptive care for women, noting that the ruling could not be
used in racial or other discrimination. In his concurring opinion, Justice Kennedy also seemed to state that in his view discrimination against LGBT people
would not be a legitimate use of the ruling.
In dissent, Justice Ginsburg and the other dissenting justices strongly criticized the majority for going well beyond the purpose of the RFRA and for
failing to take into account the impact of exempting corporations on their employees. “In a decision of startling breadth, the Court holds that commercial
enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge
incompatible with their sincerely held religious beliefs. Compelling governmental interests in uniform compliance with the law, and disadvantages that
religion-based opt outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative,” she wrote. The dissent
clearly notes that the logic of the opinion goes well past the limitations placed on this decision and states that the court has now provided a rationale
for corporations to adopt religious beliefs in order to avoid regulation.
“Despite language that the majority uses to limit this case specifically to contraceptives and Justice Kennedy’s more direct concurrence, this is a
decision that will likely provide precedence to encourage other, mostly conservative groups, to raise lawsuits over various aspects of the case,” said
Johnson. The decision paves the way for a lawsuit to be filed on behalf of non-closely held corporations and that other laws beyond the ACA could be tested.
Johnson also said that AIDS United is concerned, not only about the anti-contraceptive (and therefore anti-comprehensive sexual services) tenor of the
court but also about the effects directly on HIV/AIDS services. Conservative Fact Check, for example, has explicitly stated, “If you engage in risky sexual
practices and contract HIV, other policy holders shouldn't have to pay for your HIV therapy. And, if you have unprotected sex, others shouldn't have to pay
for your birth control.”
Additionally AIDS United is concerned that if Pre-Exposure Prophylaxis (PrEP) became a prevention requirement under the ACA or other law, it could potentially be
exempted by the court given that the effort to prevent HIV is notably close to the logic of preventing unwanted pregnancies. Moreover although the court
loudly proclaims that the decision will not allow for discrimination (specifically on the basis of race) the logic clearly leads towards an analysis that
would allow such discrimination as a deeply held religious belief, particularly towards people who are LGBTQ, people with HIV, and/or other minority
groups. If nothing else, such corporations now have a reason to attempt such discrimination, and redefine the limits, as well as keep the courts tied up in
litigation. Despite Justice Kennedy’s concurrence, the limits are likely to be tested over and over. HIV care could in some ways be imperiled.
One final concern is that this case is yet one more effort to undermine the ACA by creating more complexity than necessary, and by undermining key
components (often in contravention of Congress’s plain intent). We have seen how the Supreme Court, using novel legal reasoning
in National Federation of Independent Business v. Sebelius, undercut the logic of state expansion of Medicaid to such a degree that almost half the states are still considering not expanding and keeping millions
of people from receiving access to the care that Congress intended for them to have. Unfortunately, this decision has become the hallmark of the Roberts
court – a decision that keeps the form and appearance of the law as passed by Congress but places the protections out of reach from all but the most
Wednesday, 02 July, 2014