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The thing that I keep hearing from people who support the Hobby Lobby decision tends to be things like "Well, you don't have to work there" and that "Can't you afford $9/Month to buy your own Pills?" but the thing they don't seem to realize is that Hobby Lobby wasn't just trying to avoid paying for Birth Control methods they considered to be "abortiafacient" - they wanted to block them from being able to Consult with their Doctor about them.

First I'll let Amanda Marcotte at Slate explain, then I'll get to the text of the actual Hobby Lobby Lawsuit.

Arguments in front of the Supreme Court start next week in the Hobby Lobby case. Hobby Lobby is suing for a religious exemption from the Department of Health and Human Services mandate requiring that employer-provided health insurance cover contraception. Most of the coverage of the case has focused on Hobby Lobby's objection to the contraception itself and how, if the business prevails, its employees will have to pay out of pocket for things like birth control pills or IUDs. But, as Tara Culp-Ressler at ThinkProgress explained on Wednesday, Hobby Lobby and their co-plaintiff, Conestoga Wood Specialties, are also objecting to insurance plans covering "related education and counseling" for contraception. In other words, these for-profit businesses aren't just asking their female employees to pay for their own contraception, even though they are already paying for their own contraception by paying for their insurance coverage. These companies want to elbow their way into doctor's offices and call the shots on what doctors can and cannot say to Hobby Lobby and Conestoga Wood employees.
And that my friends, now the Supreme Court has held in favor of Hobby Lobby is an entirely different kettle of Gefilte Fish than we've been told so far.

We constantly hear the refrain that the ACA has put the Government between you and your doctor - well, it seems that Hobby Lobby just put themselves between a woman's Gynocologist and her Kooch.

To wit from their Complaint.

8. The administrative rule at issue in this case ("the Mandate") runs roughshod
over the Green family' s religious beliefs, and the beliefs of millions of other Americans,
by forcing them to provide health insurance coverage for abortion-inducing drugs and
devices, as well as related education and counseling.

88. The Mandáte also requires group health care plans and issuers to provide
education and counseling for all women benefíciaries with reproductive capacity.

93. No religious groups or other groups that oppose government-mandated
coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.

103. The Mandáte requires that Plaintiffs provide coverage or access to coverage for
abortion-causing drugs and related education and counseling against their consciences in a manner that is contrary to law.

119. Providing thts counseling and education is incompatible and irreconcilable
with Plaintiffs' express messages and speech.

They also claimed not that Emerency Contraceptives like Plan B and Ella were "abortiafacient" they said They Were Abortion.
1 14. Pian B, Ella, and certain IUDs can cause the death of the embryo.

115. The use of artificial means to prevent the implantation of a human embryo in
the wall of the uterus constitutes an "abortion" as that term is used in federal law.

No, an "Abortion" means termination of a pregnancy.  Eggs get fertilized all the time and don't turn into pregnancies - that requires a woman's womb to be implanted into.

This is on top of the fact, as Irin Carmon points out here, that 3 out of the 4 "abortiafacient" methods that Hobby Lobby objected to as preventing the implantation of an embryo - and thereby "killing" it - actually prevent ovulation.  So in reality, there is no embryo to be "killed" or "aborted" at all.

The baseline question here is whether potentially and intentionally preventing the implantation of a fertilized egg constitutes abortion. That’s not the medical definition of abortion, which is ending a pregnancy. But let’s say your sincerely held belief is that interfering with the implantation of a fertilized egg is tantamount to abortion, as it is for the Hobby Lobby and Conestoga Wood owners. There is very little evidence showing that the objected-to methods – two forms of intrauterine devices and two forms of emergency contraception – even work that way, with the exception of the copper IUD.

There are two kinds of emergency contraception on the market: an over-the-counter one generally known as Plan B and a prescription-only one known as Ella. According to the amicus brief filed by the American College of Obstetricians and Gynecologists and several other medical associations, “there is no scientific evidence that emergency contraceptives available in the United States and approved by the FDA affect an existing pregnancy.” Instead, they prevent ovulation, so there is no egg to fertilize. That includes the longer-acting Ella: “There is no evidence that [Ella] affects implantation.”

One form of the IUD, known on the market at the Mirena, includes hormones that prevent ovulation. The other, preferred by women who experience side effects from artificial hormones, doesn’t. “When used as emergency contraception” – i.e., after unprotected sexual activity – “the [non-hormonal IUD] could also act to prevent implantation,” according to the amicus.

Yeah, y'know, Science and stuff.

So the argument has been that, gee, if you happen to work for Hobby Lobby and you just had to get Plan B or Ella all you have to do is ask for it and then pay for it out of your own pocket, but that's not the way Hobby Lobby looked at it.  They didn't think that being able to even talk to your Doctor about all your Contraceptive Choices were acceptable (let alone the have them mention the fact that Plan B and Ella aren't "abortiafacient" at all) because apparently Hobby Lobby had decided they just didn't like or agree with certain choices that women just might make on their own time, using their own pre-tax benefits compensation package.

How exactly would that work out in the real world?

"Essentially, if Hobby Lobby and Conestoga Wood are successful, they’ll win the right to refuse to extend coverage for doctor’s visits that include discussion about certain forms of contraception, like IUDs or the morning after pill," Culp-Ressler writes. That would probably be something insurance companies could deal with if there was such thing as a specialized doctor's appointment to only discuss contraception. In the real world, however, most women receive their contraception counseling at general gynecological appointments or annual checkups. You go in, get your blood taken, get a Pap smear, get your breasts squeezed, and then your doctor asks what you use for contraception, and you walk out with a prescription in hand. If Hobby Lobby has its way, by merely acknowledging the birth control pill during that appointment, your doctor would render your entire visit ineligible for coverage by your health care plan.
Having a discussion about the verbotten forms of contraception with your doctor, just might render the entire visit Uncovered under your Health Insurance - which means you wouldn't just be paying for the cost of that particular prescription out of your pocket you'd have to pay for the ENTIRE VISIT OUT OF YOUR OWN POCKET.

And I would think that's a bit more than $9/Month [ed. I should point at that the "Just $9" meme is a crock too. Birth Control can run for as much as $390/year, Plan B starts at $49.99 and an IUD can cost over $900!]

In effect this would operate in the same manner as the Global Gag Rule has for decades.

First put in place from 1985 to 1993, the Mexico City Policy (Global Gag Rule) stipulates that nongovernmental organizations receiving U.S. assistance cannot use separately obtained non-U.S. funds to inform the public or educate their government on the need to make safe abortion available, provide legal abortion services, or provide advice on where to get an abortion. The policy did allow for exemptions in the cases of rape, incest, and the life of the mother, but not for a woman’s physical or mental health.

Documentation and analysis of the impact of the Global Gag Rule has shown that the policy restricts a basic right to speech and the right to make informed health decisions, as well as harms the health and lives of poor women by making it more difficult to access family planning services. It has also been found that the policy does not reduce abortion.

In order to avoid the financial morass this creates many Doctors around the world have simply avoiding bringing the subject of abortion up at all - which is frankly the goal of the rule in the first place. To Gag Doctors.

So the question to consider is does Hobby Lobby's right of Free Religious expression now seem to trump the right of Doctors to tell their patients The Truth about their care options?

I can't say I'm sure. Not yet.

The Court essentially ruled that Hobby Lobby's objection to being "Forced" to either pay for medical treatments they found "religiously intolerable" or else face paying a fine of $2000 per Employee if they dropped their entire company health plan and let their employees "Fend for themselves" on the Insurance Exchanges was "Too much for them to Bare".

Remember that next time someone says that they could just go "Buy it themselves" - the SCOTUS said letting 14,000 people pay for their own care on the individual market - at prices about 3X that of employers cost of $2k per person - would have put too much of a burden for poor little Hobby Lobby to withstand.

The SCOTUS did lot claim that Hobby Lobby and Conestoga had a First Amendment Right to deny being involved in this coverage, rather they argued that the Congressionally passed Religious Freedom Restoration Act of 1993 or RFRA (a law that was put in place to counter the repeat of a prior SCOTUS decision that found that two guys who'd gone off the consume peyote and had been fired for being absent from work couldn't make a claim for unemployment benefits on religious grounds as American Indians) now means that Privately Owned Corporations can make the same claims for Religious Rights that Churches and Church Affiliated Non-Profits can.

Whether they can now file for the same tax exempt status that's available to churches and non-profits was not addressed.

They didn't say this was a Constitutional Issue, they said that the RFRA - somehow - supersedes and overrides the requirements of the ACA's Contraceptive Mandate.  Not just the 4 methods that Hobby Lobby objected too... all of it.

Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.

* * *

The contraceptive mandate, as applied to closely held  corporations, violates RFRA.  Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.

As I'm reading this it seems that the Entire Mandate has been struck down for Privately Owned Corporations.  Not just Hobby Lobby, not just Conestoga, not just for Women but for Men as Well because the Contraceptive Mandate as written covers both.

And if there is no mandate to provide contraceptive care without a copay, then there is no real requirement to inform anyone of their complete contraceptive choices.


And there is a rather big but here, the reason that the SCOTUS gave for saying that the Contraceptive Mandate violated the requirements of the RFRA wasn't because it wasn't needed, and didn't meet a compelling need for healthcare - they admitted that it DID - they argued that it wasn't the "least restrictive method" for meeting that need because HHS has previously granted waivers to the mandate to Churches and Religious Non-Profits, and also - that the mandate was waived for Grandfather Health Plans.  Y'know - the plans that if you "Like You Could Keep" even if they essentially didn't work? They also argue that we've already spent so much on the ACA, what's wrong with spending a little more?

The least-restrictive-means standard is exceptionally demanding, see City of Boerne, 521 U. S., at 532, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases. See §§2000bb–1(a), (b) (requiring the Government to “demonstrat[e] that application of [a substantial] burden to the person . . . is the least restrictive means of furthering [a] compelling governmen-
tal interest” (emphasis added)). The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.  This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not a viable alternative.  HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA, are designed primarily for emergency use. See Birth Control: Medicines to Help You, online at Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel.  Nor has HHS told us that it is unable to provide such statistics. It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurance coverage provisions will cost the Federal Government more than $1.3 trillion through the next decade.  See CBO, Updated Estimates of the Effects of the Insurance Coverage Provisions of the Affordable Care Act, April 2014, p. 2.36  If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this
I don't think it's so hard to understand that providing this funding would require an Act of Congress and that that - simply is not. going. to. happen. Period.  And even if we did get over that big LUMP that is our current Congress, some members of it could argue Hobby Lobby's point that these methods of contraception are "Abortion" and then we get - Hyde Amendment!

Then there's the slide-it-in-the-Side Door option...

In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.  As we explained above, See supra, at 9–10, and nn. 8–9. Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services.  See 45 CFR §§147.131(b)(4), (c)(1); 26 CFR §§54.9815–2713A(a)(4), (b). If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.”  45 CFR §147.131(c)(2); 26 CFR §54.9815–2713A(c)(2).38
Under this scenario the Insurer would absorb the costs of providing this coverage at no cost to the employee - [HHS argues that this cost is negligible because of the preventive benefits that would also be gained] - which would be fine and dandy, except it's not entirely clear to me that they now have to even bother if they don't want to since the entire Contraceptive Mandate Has. Been. Declared. Unlawful.

See again here:

the HHS contraceptive mandate is unlawful.
That in plain english, would seem to say to me that there Is No More Contraceptive Mandate.  It's gone. Done. Over.

It doesn't seem like that SCOTUS made any specific requirement that some form of the mandate - even for publicly held corporations - has to remain in place.  It exists only because it happens to be part of all QHP plans that have been offered this year, not counting the grandfathered plans but what about next year?

What if Congress decides that the Government simply isn't going to pay for this?  They won't pay for VA HealthCare corrections, let alone Border or Embassy Security - what makes anyone think they're gonna jump out of their chairs to make sure Plan B and Ella are paid for?

Can HHS issue a regulation that continues to require this coverage, except for any "Privately Held Corporation" who happens to object on Religious grounds and grant them the option that they have to let them have the substitute plan where the insurance Company is required to pay for this coverage?

Whose going to be providing all these substitute plans?  Do they have to even bother offering them anymore?

And on top of all that the attorney for Hobby Lobby has said she and the Greens haven't even considered whether they would either of this accommodations acceptable.  She said that HHS had never offered it to them, so they never considered it - but other Church-based organizations like Norte Dame have received this kind offer and they haven't dropped their contraception lawsuits because they think their employees and students getting this care - even without their direct involvement in paying for it - simply isn't acceptable.  It's just not ok with them  if people can get these products and medicines at all even the "non-abortiafacient" ones like Condoms are too much for their delicate religious sensibilities.

Has Hobby Lobby gotten exactly what they wanted all along, not just for their own employees, but everyones? To be continued...


11:11 AM PT: Fortunately it appears - at least so far - that the medical billing codes don't currently have a specific break out for Contraceptive Consultation because none was ever needed before. If that remains the case any attempt at a gag over for such consultations can't be enforced.  But then again, billing codes can be updated and modified when a need arises and requiring a billing breakout for contraceptives to be paid by means other than the standard premium as the SCOTUS suggests behind Door #3, could do just that.  We'll have to just pay attention and see.

2:27 PM PT: Bad news on the Billing Codes - I just got a direct message from a Physician who says that those aren't the only way that a provider can audit the content of a consultation.  They can also review a physicians charts and notes.  More details if they allow me to quote them specifically,.

2:39 PM PT: They posted their own comment in addition to the kosmail message here.

This is the gist of it, emphasis mine.

Yesterday, I widely posted and referenced the American College of Obstetricians and Gynecologists statement on the HL decision.  In it, they warned that the decision would allow employers to interfere in the doctor-patient relationship, by limiting what discussions and options patients would be presented with.  I met some resistance from people who insisted that this was a narrow ruling that would "only" prevent payment for services, and not prevent women from accessing said services.  Therefore, I was very happy to see your diary where you dove into the nitty-gritty of the court documents to show that, yes indeed, HL sought to prevent payment for "counseling and education" too.

Unfortunately, that sent many chasing the rabbit down the hole of ICD-9 codes.  The theory being that since there is no specific code for "contraception counseling" then insurance companies, and by extension, the employers who contract with them, wouldn't know whether a woman discussed contraception with her physician.  This is so not true.  Physicians are required to document in patient charts what they and the patient discussed, what treatment reccomend actions were made, and the medical reasoning behind those reccomend actions.  This information is available to the insurance companies under the terms of service the patient agrees to when they enroll in coverage.  Furthermore, for most procedures and many prescriptions, the physician must send in documentation to the insurance company about the reccomended treatment plan, and the discussions that led to the agreed upon course of action.  If an insurance company wanted to, they could easily do an audit of claims and find out that illicit counseling occurred.  The wide implementation of electronic medical records would make this an easy task!

So that's not looking very zesty in the privacy department, and the implementation of some type of "gag rule" could come into play with certain insurers if there is indeed a split in who covers what, where and when within the same policy. Stay tuned.

Originally posted to Vyan on Wed Jul 02, 2014 at 09:18 AM PDT.

Also republished by Abortion and Pro Choice.

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