Penn professors call Hobby Lobby decision a "setback for women's healthcare"

Two Penn professors argued in a recent paper that the Supreme Court’s controversial Hobby Lobby decision — which allowed closely held, for-profit corporations to be exempt from contraceptive coverage under the Affordable Care Act — impedes progress on women’s healthcare.

Medical Ethics and Health Policy professor Jennifer Prah Ruger, Law School professor Theodore Ruger and Boston University professor George Annas collaborated in an article released in the New England Journal of Medicine called “Money, Sex and Religion—The Supreme Court’s ACA Sequel.”

In the article, the three discuss the controversial five to four ruling and state that the majority decision “...is a setback for both the Affordable Care Act’s foundational goal of access to universal health care and for women’s health care specifically.”

“Drugs and devices critical to health should be available to all,” Annas said in an email, summarizing the paper’s argument.

The authors emphasized the importance of a uniform set of healthcare benefits for men and women.

“I think that for many decades now the U.S. has lagged behind other leading democracies...in our failure to provide universal health coverage to our citizens,” Theodore Ruger said. “The current U.S. system that predates the ACA left huge gaps in coverage for a number of groups — both individuals of low income and also individuals who had preexisting conditions and other health problems.”

Jennifer Prah Ruger echoed his sentiments. “I think that a uniform set of healthcare benefits is important for equity reasons so that individuals across the country — regardless of their backgrounds or where they live or what sort of demographic characteristics apply to them — have [an] equal opportunity to be healthy,” she said.

While many women use birth control for medical reasons other than contraception, the Hobby Lobby case primarily concerned a religious groups’ objection to abortion — the owners of the Hobby Lobby chain believe that contraceptives that prevent fertilized eggs from implanting pose a religious violation.

“We emphasized in our article that while this is really a question of reproductive health and methods of contraception, [it] became an issue of abortion,” Jennifer Prah Ruger said.

The scholars noted the gender split of the final court decision — the Court’s three female justices and Justice Breyer dissented, while five men composed the majority opinion.

“The men don’t see pregnancy as a problem related to health,” Annas said.

Theodore Ruger said that it is important to exercise caution in attributing judicial decisions to “something as simplistic as gender.”

“However, in this particular case, given the extremely lopsided effect of the ruling on women’s healthcare, it may well be telling,” Theodore Ruger said.

In the article, the professors discuss Hobby Lobby’s investments, as the company invests its 401k plan heavily in companies that make birth control, such as Teva Pharmaceutical and Bayer.

“In the context of making money, rather than spending it, Hobby Lobby itself apparently has no religious objection to an intervening agent making choices that funnel its money to the makers of contraceptives,” the authors wrote.

Theodore Ruger sees these investments — which are done by a fund manager — as so attenuated that they “don’t really burden the religious practice.” He also noted that a woman’s pursuit of birth control should also be considered an attenuated action and “the fact that the court was willing to say that even that... chain of events was enough to burden Hobby Lobby’s religious rights shows how extreme the court’s decision was.”

The article argues that our “incremental” and “fragmented” health insurance system has only been further weakened by the Hobby Lobby decision, which created another difference in health care policy on the basis of sex.

“I think it’s very important to give individuals autonomy to pursue their religious beliefs,” Theodore Ruger said. “But [the] Hobby Lobby [decision] took a rare step in saying that those religious beliefs extended into the sphere of commercial activity.”

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