The Supreme Court’s ruling in Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores, Inc., et al., could undermine a central goal of the Patient Protection and Affordable Care Act (ACA): to expand access to health care by creating a system in which access to health care is based on need and not on ability to pay.
Writing for the majority, Justice Samuel A. Alito Jr. 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 Ruth Bader Ginsburg contested this claim. She categorized the ruling as “a decision of startling breadth,” continuing, “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 corporations 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 decision 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 National Federation of Independent Business 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.
Michael K. Gusmano is a research scholar at The Hastings Center. A version of this commentary appeared on The Philosopher’s Eye blog.