The Hobby Lobby Decision May Undermine the Goals of the ACA

Michael K. Gusmano, Ph.D.
Research Scholar, The Hastings Center

A central goal of the Patient Protection and Affordable Care Act (ACA) is to expand access to health care. The ACA is designed to create a system in which access to health care is based on need and not on ability to pay. The Supreme Court’s ruling In Burwell v. Hobby Lobby Stores, Inc., et al., could undermine this goal. Writing for the majority, Justice Alito argued that “as applied to closely held corporations, the HHS regulations imposing contraceptive mandate violate” the Religious Freedom Restoration Act of 1993 (RFRA). As a result, owners of closely held for-profit corporations may refuse to provide health insurance coverage that includes contraceptive services mandated by the ACA. Justice Alito argued that the ruling “should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs,” but in her dissent, Justice Ginsburg contested this claim. She categorized the ruling as “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.”

The proponents of the ACA decided to build on, rather than replace, the existing system of employer-based health insurance. The Court’s decision in Burwell v. Hobby Lobby Stores, forces us to revisit the wisdom of linking health insurance to individual employers. Even if the decision does not allow “closely held” corporation to refuse coverage for other types of health care services, it is likely to limit access to contraceptive services to many women. Without an alternative source of funding for these excluded services, the Burwell v. Hobby Lobby Stores will shift the cost of health care to individuals, a problem that has been growing and that the ACA was designed to alleviate. Although this ruling is not designed to engage directly in the broad normative debate about how we ought to allocate health care, it is likely to have the consequence of increasing health care inequalities by making access dependent on ability to pay. Coupled with the Court’s decision in NFIB v. Sebelius, in which the Court ruled that states do not have to participate in the law’s Medicaid expansion, Burwell v. Hobby Lobby Stores threatens to undermine the ACA’s goal of moving the U.S. closer to the international standard of basing access to health care on need.

References

[1] Burwell, Secretary Of Health And Human Services, et al. v. Hobby Lobby Stores, Inc., et al.: 573 U. S. ____ (2014) (http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf; accessed on July 3, 2014).

[2] Burwell, Secretary Of Health And Human Services, et al. v. Hobby Lobby Stores, Inc., et al.: 573 U. S. ____ (2014) (http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf; accessed on July 3, 2014).

[3] Gusmano, Michael K. 2013. “NFIB v. Sebelius: The Political Expediency of the Roberts Court” Health Economics, Policy and Law 8(1): 119-124.

[4] Arras, John D., and Elizabeth M. Fenton. 2009. “Bioethics and Human Rights: Access to Health-Related Services.” Hastings Center Report 39 (50): 27–38.