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Correction
A story on a Supreme Court ruling Monday incorrectly reported that IPFW medical ethicist Abe Schwab said Hobby Lobby workers can receive federally subsidized contraceptives. Schwab said they would be eligible to receive them pending approval by Congress or an executive order by the president.

Birth-control ruling limited in scope, experts say

The U.S. Supreme Court's Hobby Lobby decision is significant for what it does not do, according to two observers in Fort Wayne.

It does not force Hobby Lobby employees to pay for their own contraceptives. They can receive government subsidies through a Labor Department waiver, IPFW medical ethicist Abe Schwab said.

“It will simply require them to fill out additional paperwork, which while annoying at least it's just additional paperwork,” Schwab said Monday in a telephone interview.

The ruling does not let for-profit employers cite religious reasons to dodge the Affordable Care Act on any medical treatment or procedure but birth control, said Doug Powers, an employment benefits compliance attorney.

And it does not mean that the First Amendment has been invoked to transform companies into religious people.

“I think this would be a much more significant decision if it were decided on First Amendment grounds,” Powers said in a phone interview. “And I think a lot of people assume that it is. But it's really not; it's statutory construction.”

The Supreme Court interpreted a federal law, the Religious Freedom Restoration Act of 1993, not the U.S. Constitution. The court decided that providing preventive health care “is a compelling state interest,” Powers said, “but the government, and Health and Human Services through its regulations, has not demonstrated that it used the least-restrictive means in addressing that compelling state interest.”

“It's certainly a blow against the Affordable Care Act, but I don't think it's going to be a substantial one,” he said.

Schwab agreed, adding, “Ultimately, what we're waiting for is the other shoe to drop.”

The other shoe would be possible Supreme Court action on lawsuits brought by the University of Notre Dame and others that challenge an Affordable Care Act regulation for third-party insurers to provide contraception coverage for employees of religiously affiliated hospitals, universities and organizations.

If that rule would be overturned, Schwab said, many workers could lose access to contraception insurance.

In the meantime, neither he nor Powers predicts a flood of employers will try to claim religious exemptions so they don't have to cover contraceptives in employee health plans.

For one thing, Powers said, “that gets into a pretty subjective factual determination” by federal authorities. For another, employers that cut back insurance coverage might risk a sharp decline in the quality and quantity of job applicants.

“The decision point in that respect is one of, ‘How important are my sincerely held religious beliefs when it comes to running a profitable business?' That's a trade-off that a corporation will have to make internally,” said Powers, an attorney with Beckman Lawson.

The privately held Hobby Lobby chain of craft stores, which includes a Fort Wayne retail shop off Coldwater Road, “obviously made the decision that its religious beliefs were more important,” Powers said.

Schwab said the high court's ruling “might move people toward giving more priority to government jobs and publicly owned corporation jobs, moving us further and further away from small businesses and more toward larger corporations” that offer better insurance.

He said he is troubled that an employer would want to control a worker's health care options as it would his workplace appearance. “If you dictate the clothing that your employees wear, that's something that can have an effect on their pocketbook, but at the end of the day they can go home and put on a different set of clothes,” Schwab said. “Whereas health care is something that has fundamental effects on a person's day to day life.”

If Hobby Lobby workers turn to the federal government for their birth-control coverage, is that an indication that Monday's Supreme Court decision could be moving the nation closer to a single-payer, government-run health insurance program?

“I suppose you could make the argument that this does move the needle toward a single payer, but only very incrementally,” Powers said. “There are many, many other considerations that bear on that whole argument.”

Schwab said: “If somebody were to argue it moves us closer, it would be like by expanding the city limits of Fort Wayne we'd move closer to California. OK, yeah, we're closer, but we're still a long, long way away.”

bfrancisco@jg.net

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