By Tresa Baldas
Detroit Free Press.
The U.S. Supreme Court’s landmark Hobby Lobby ruling has sparked a lot of confusion about the fate of birth control in America, though legal experts say the decision isn’t as fuzzy as it seems.
There are some certainties.
Not all employers are covered by the ruling, only “closely held” corporations with 50-plus employees can deny contraceptive coverage to employees on religious grounds.
Birth control has not been banned; neither has abortion.
Small businesses with fewer than 50 employees are not covered by the ruling as federal law has never required them to provide contraceptive coverage for their workers.
And women who work for family-owned businesses like Hobby Lobby can still get the pill, they just have to jump through some extra hoops.
So, what exactly did the high court say about birth control?
The U.S. Supreme Court ruled Monday that requiring certain employers to pay for contraceptives to which they are morally opposed because of their religion violates the 1993 Religious Freedom Restoration Act.
That means that certain employers, specifically “closely held” corporations, are exempt from the Obama administration’s 2010 Affordable Care Act, which requires employers to pay for contraceptives through company insurance plans.
But to be exempt, the high court stressed, companies must demonstrate “sincere” religious beliefs.
Five Michigan companies opposed to paying for birth control believe they have done just that and are counting on the ruling to aid their own lawsuits, which have been shot down by lower courts.
On Tuesday, the U.S. Supreme Court gave two of those companies a boost when it ordered the U.S. 6th Circuit Court of Appeals to reconsider its decisions against the companies: Eden Foods, a Clinton-based natural foods company; and Autocam in Kentwood.
The high court also clarified its decision on Tuesday, noting the Hobby Lobby ruling covers all 20 FDA-approvedcontraceptives, not just the two morning-after pills and two intrauterine devices that Hobby Lobby had sued over.
That means Catholic-owned businesses can now refuse to pay for birth-control pills for female employees, or any other type of contraception if they so choose.
What employers are affected?
Lyman Johnson, a business law professor at Washington and Lee University School of Law, said the Hobby Lobby ruling is ripe for debate, particularly because it’s not clear who it applies to.
“One open question is, what exactly is a closely held business,” Johnson said.
According to the Internal Revenue Service, a closely held corporation:
-Has more than 50% of the value of its outstanding stock owned directly or indirectly by five or fewer individuals at any time during the last half of the tax year; and, Is not a personal service corporation.
“Most U.S. companies can fall into this category,” said Johnson, who estimates that up to 90% of American businesses are “closely held.” However, he noted, most of those are small businesses with fewer than 50 employees, and those companies have never been required to provide contraception coverage to its employees.
According to a 2009 study from Columbia University, Michigan State University and the University of Michigan, closely held corporations employ more than half of the American workforce, or 52%.
What contraceptives are covered under the ruling?
According to the Food and Drug Administration, there are 20 government-approved contraceptives in the U.S. Now, certain employers can deny coverage for any one of these to its employees citing religion:
-Condoms for males.
-Condoms for females.
-Cervical cap with spermicide.
-Spermicide (foam, cream, jelly or tablet).
-Oral contraceptives: “The pill” estrogen and progestin.
-The “mini pill” (progestin only).
-“Extended/continuous use pill.”
-Vaginal contraceptive ring.
-Shot/injection of progestin.
-Plan B “morning after” pill.
-Ella “morning after” pill.
-IUD with progestin.
-Implantable Rod, matchstick-size rod in upper arm.
-Sterilization surgery for women (typing and cutting the tubes).
-Sterilization implant for women.
How do employees who work for closely held companies like Hobby Lobby get birth control?
Women who work for Hobby Lobby can still get birth-control pills. The company didn’t object to that, or 15 other types of contraceptives, just the morning after pills and the IUDs because they believe they work after conception and trigger abortions.
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