Monday's Hobby Lobby decision was a blow to Obamacare's effort to expand women's access to reproductive care — but, in truth, a minor one. Relatively few employers are likely to stop covering birth control, and even for those that do, the Obama administration might develop a workaround.
More importantly, the Supreme Court's decision doesn't touch most of Obamacare's reproductive health gains. "Obamacare is the biggest increase in access to reproductive care in decades," Cecile Richards, president of Planned Parenthood, told me the day after the Supreme Court ruling. Here's why that's true, even after the Hobby Lobby decision.
1. Medicaid covers contraception — and much more — for millions of low-income women
The most important thing Obamacare does to expand access to reproductive care is to expand women's access to affordable insurance. "Through the Affordable Care Act millions of women have insurance now who didn't have it before," says Richards.
That begins with the Medicaid expansion. "The first really important thing the ACA did is expand Medicaid dramatically," says Adam Sonfield, a senior policy researcher at the Guttmacher Institute, which studies reproductive health. "Medicaid has always been strong when it comes to coverage for family-planning services, pap smears, and STIs. The only major exceptions under Medicaid have been abortion and infertility care."
The Medicaid expansion covers the poorest of the poor: these are women for whom paying for birth control or pap smears out-of-pocket is a major, sometimes insurmountable, challenge. Moreover, these are women who are less likely to have a relationship with a primary care physician, so they don't have a regular doctor who can prescribe their birth control or recommend screenings.
"The mere fact of expanding Medicaid coverage to millions of new people means the expansion of family planning services to those people," says Sonfield.
2. Most enrollees on Obamacare's exchanges are women
Then there's the expansion of insurance through Obamacare's exchanges. The Department of Health and Human Services reports that 54 percent of the roughly 8 million people who signed up for exchange insurance are female. And exchange insurance has to cover not just contraception, but testing for sexually transmitted diseases, pap smears, HPV vaccination, prenatal care visits and breast pumps.
Moreover, the law mandates that all those services need to be covered without copays or cost sharing. "That last part was a particular revolution under the ACA," says Sonfield. "Cost sharing is meant to reduce the use of unnecessary care." So what Obamacare did was to declare a broad range of reproductive health-care services as essential health benefits — and therefore benefits that were fully covered by insurers.
The upshot is that millions of women now have health insurance through Obamacare's exchanges that covers an array of reproductive health services without even asking for a copay.
3. Almost all insurance plans now have to cover a broad range of reproductive health services
This is the backdrop to the Hobby Lobby fight. Obamacare didn't simple mandate that Medicaid and exchange-based insurance would cover reproductive health services. It decreed that virtually all insurance had to cover reproductive health services.
Under Obamacare, an insurance plan doesn't actually count as an insurance plan unless it covers a basket of "essential benefits". If it doesn't cover those benefits, then it doesn't free people from paying the individual mandate, or qualify for various employer tax breaks, or satisfy the employer mandate (assuming that eventually goes into effect). That basket of essential benefits includes reproductive health services — the same ones covered by the exchange plans.
That's why there was a Hobby Lobby case in the first place: because Obamacare forced millions of employers to expand their coverage to include reproductive health services with no copays. (There are temporary exceptions for some plans that predate Obamacare, but in the long-run, these changes will apply to virtually all insurance plans.)
Critics of Obamacare argue, accurately, that these rules raise premiums and reduce the flexibility employers have to manager their insurance options. At the same time, they inarguably increase access to, and reduce patients' costs for, reproductive health services.
According to data from the IMS Institute for Health Informatics, the number of women who filled prescriptions for oral contraceptives with no copay shot from 1.2 million in 2012 to 5.1 million in 2013. "The numbers we saw for the first year the benefit was in effect showed that women in America saved more than $400 million," says Richards. Those numbers will be much higher in 2014.
4. The Hobby Lobby decision isn't likely to change much
The Supreme Court's ruling applied to "closely held" corporations — which is to say, corporations where more than half of the stock is held by fewer than five people. That describes as much as 90 percent of all corporations, but because these businesses tend to be smaller, they only employ about 50 percent of American workers. Still, 50 percent is a lot.
The thing is, most of these corporations want to provide contraceptives. "There are financial savings from covering birth control rather than unplanned births," says Sonfield. "There are productivity issues, leave time, and turnover from unexpected pregnancies. There's the reality that you don't want to upset your employees by taking away a benefit their peers across the nation will have."
The National Business Group on Health found, in a 2000 study, that employers who didn't offer contraceptive coverage spent 15 percent to 17 percent more because of the costs of pregnancy and reduced productivity. In a 2007 report, the group recommends that employers "Make sure that your plans cover comprehensive contraception options (e.g., hormonal pills, sterilization, IUDs, etc)," and further suggests that they "reduce or eliminate copays/coinsurance on these interventions, which help prevent unintended pregnancies."
There's also the possibility that the Obama administration could create a workaround for employers who don't want to offer contraceptive coverage themselves. As Adrianna McIntyre writes, "The Obama administration has already extended an 'accommodation' to religious nonprofits — like hospitals and universities with religious affiliations — to bridge the divide created by the contraceptive mandate. The way the accommodation works is by requiring the insurer to provide birth control, without passing that cost on to the company. Insurers recoup their losses through reduced fees to the government."
There would be logistical hurdles involved in this, and so far, the White House has said they want Congress to take the lead. But if religious exemptions become a widespread problem for Obamacare the administration could break the glass on this option.
5. Insurers can't discriminate against women for being women
"The biggest benefits of the Affordable Care Act are being felt by women," says Richards. "Women are bigger users of health care because we reproduce. That's just the fact of the matter. And so we were charged more in the past. Women have been denied coverage because they are pregnant, or were pregnant, or had a Caesarean section, or had been the victim of domestic violence."
Those denials are illegal now. Insurers can't charge women more than men for insurance. They can't price discriminate based on preexisting conditions or past needs. The result is that women benefit more from the law's insurance regulations because their higher expected costs and their lengthier medical histories meant that they were typically charged higher prices by insurers prior to Obamacare.
What Hobby Lobby didn't do
This isn't even particularly close to a full accounting of Obamacare initiatives that matter for reproductive health. When I first called Sonfield and asked him to walk me through what Obamacare does for reproductive health, he laughed and told me this was going to be a very long conversation. I've focused here on some of Obamacare's more sweeping initiatives, but as Sonfield says, "there are a bunch of smaller pieces like nurse home visiting programs for new parents, various aspects of payment reform, a lot of new money for community health centers, a guarantee for direct access to ob-gyns under private health plans." These matter too.
The broad point here is that Hobby Lobby doesn't come close to rolling back Obamacare's main efforts to expand access to reproductive health care. This is something that Obamacare's critics recognize. As the New York Times' Ross Douthat wrote, "it didn't even roll the clock back to 2009, let alone to 1959, and it's quite possible that the ultimate impact on insurance coverage will be identical to what would have happened had the justices had ruled the other way."
Which isn't to say the story on reproductive rights is wholly optimistic. As my colleague Sarah Kliff reported, "states passed a record 205 abortion restrictions between 2011 and 2013, more than the entire 30 years prior." One estimate suggests that 87 abortion providers have shuttered in recent years, and for many women, the hundreds of miles between them and the nearest abortion providers makes their choice a theoretical, rather than useable, right.
But the scope of the Hobby Lobby decision shouldn't be overestimated: the vast majority of Obamacare's efforts to ensure more women are able to get reproductive health services remain intact.