LA Times op-ed: Ginsburg's warning about Hobby Lobby decision plays out in other contraceptive coverage challenge

July 27, 2016 — In a Los Angeles Times opinion piece, columnist Michael Hiltzik highlights a challenge to the Affordable Care Act's (ACA) (PL 111-148) contraceptive coverage rules in which the plaintiffs "assert that [the ACA's] contraceptive mandate tramples on their family's religious rights even if they don't make use of it."

Hiltzik explains that the case was brought by Missouri state Rep. Paul Wieland (R) and his wife, Teresa, who have insurance through Wieland's employment as a state lawmaker. According to Hiltzik, the couple is "demand[ing] access to a policy that doesn't offer contraception under any circumstances."

Last week, Federal District Judge Constance Hamilton "denied the government's motion to throw out the case on summary judgment" and "clear[ed] the case for trial," Hiltzik writes. He notes that in the ruling, Hamilton found that "[m]erely requiring individuals to buy an insurance policy that provides contraception could infringe on their religious conscience."

Hiltzik states, "This is yet another expansion of the murky standard the Supreme Court set in its 2014 Hobby Lobby ruling, which established the principle that corporations can feel that their religious scruples are infringed even if they're not religious entities." Hiltzik highlights Justice Ruth Bader Ginsburg's dissent in the Hobby Lobby case, in which she "warned that the court had 'ventured into a minefield' by opening the door for religious exemptions from general public laws to be claimed by almost any entity on any grounds."

Hiltzik writes, "The Wieland case underscores the breadth of Hobby Lobby that Ginsburg mentioned."

He writes that Hamilton in her ruling "buys the family's argument that the government, by saying that if the Wielands don't believe in contraception they can simply avoid using it, is effectively 'an argument that Plaintiffs' religious beliefs are unreasonable.'" Further, Hiltzik writes that Hamilton "rejects the government's argument that the law doesn't require the Wielands to 'modify any behavior at all.'"

According to Hiltzik, "The real question posed by the lawsuit is what 'conduct' means." He states, "The government is correct in stating that [the ACA] doesn't force the Wielands into any particular course of conduct." He points out that none of the procedures and services covered in a health insurance policy are "mandated for use or outside the insured's volition, except perhaps emergency treatment to someone in a coma or vaccination requirements for children, which hardly applies to contraception."

Rather, as Hiltzik explains, "[t]he only 'conduct' the Wielands might undertake in violation of their religious beliefs would be to acquire birth control." Noting that the family "say[s] they won't do that and no one is forcing them to," Hiltzik asks, "how exactly are their beliefs infringed?" He adds that "their insistence on a personalized policy could conceivably drive up costs for everyone in the pool, since it would take administrative effort by the insurers, which presumably they would pass on to all customers."

Noting that the plaintiffs' "proposed personal solution might complicate the provision of healthcare to strangers," Hiltzik concludes by asking, "Is this case really about a burden on their own religious beliefs or an attempt to impose their beliefs on others?" (Hiltzik, Los Angeles Times, 7/25).