Who might be affected?
For now, there is no definitive answer on how many women could potentially lose coverage of contraception as a result of the Supreme Court decision. Hobby Lobby has 500 stores and 13,000 employees. Conestoga Wood Specialties has 950 employees. There are 90-100 cases challenging the contraception requirement, with about half them from nonprofit organizations and half from for-profit companies. And there’s motivation to sue: Companies that do not comply with the ACA requirement face fines of $100 per day per enrollee.
According to the Dept. of Health & Human Services, about 48 million women are eligible for preventive services because they are in "non-grandfathered" health plans.
Millions of women receive family planning services outside of employer-sponsored insurance, and thus may not be directly affected. A Guttmacher Institute report shows that 19 million women need publicly funded services and supplies because they are low income or are assumed to have a low income because they are under age 20 years. Family planning services provided through federal and state government funding helped women avoid 2.2 million unintended pregnancies in 2010, according to Guttmacher.
Reversing the decision
A handful of Democrats in the House and Senate introduced legislation July 9 to reverse the Supreme Court’s decision. The Protect Women's Health From Corporate Interference Act, introduced by Sen. Patty Murray (D-Wash.), would eliminate the loophole given by the court to companies that are not religiously affiliated.
ACOG praised the effort and applauded the legislators "for recognizing that contraceptives and other essential health care services should not be treated differently than other forms of health care.
"We look forward to working with them and other Congressional leaders to ensure that the ability of physicians to provide care for women is no longer subject to outside interference," Dr. Jennings said in a statement.
The White House said in an official Statement of Administration Policy that it strongly supported the legislation, saying that it "would prevent owners of for-profit companies from asserting their personal religious views to deny their employees federally-required health benefits."
Senate Democrats attempted to bring the bill to the floor on July 16, but failed to secure enough votes for debate. Republican Senators in the meantime introduced their own legislation to guarantee that employers could not bar "access" to contraceptives. The Preserving Religious Freedom and a Woman’s Access to Contraception Act (S. 2605) was introduced by Sen. Kelly Ayotte (R-N.H.).
Neither of the bills are expected to gain much traction in either the Senate or the House.
ACOG has asked its members to report coverage problems to their regional chapters, Dr. Conry said.
The federal government also could pursue several methods of reinstating the coverage. It could give for-profit employers the same accommodation that it has given nonprofit religiously affiliated employers like schools or charities. If these employers self-attest that paying for birth control violates their beliefs, then the employer’s insurer pays for the contraception. For self-insured employers, the exemption is not as easily navigated, because they would have to pay for the coverage.
That accommodation is being challenged by at least 45 legal cases that argue filling out the form violates plaintiffs’ religious beliefs because it means they are facilitating access to birth control.
The government could also pay directly for contraception for women whose employers receive an exemption. Supreme Court Justice Samuel Alito suggested such a possibility in his majority opinion in the Hobby Lobby case.
Dr. Davis said that, ideally, gynecologists would be able to give patients the contraception of choice on the same day of a visit and that the physician would be reimbursed for the cost of the device plus a fee for placing it. And, physicians should be able to counsel patients without thought of potential oversight from an employer or anyone else.
But, she said, "We are very far away from that right now."
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