By David Orentlicher
For those who feared that the Supreme Court’s Hobby Lobby decision would open the door for employers to block contraceptive access for women in the workplace, welcome reassurance has come this week from the U.S. Court of Appeals for the Fifth Circuit. According to the Fifth Circuit, when the Affordable Care Act requires that contraception coverage be available for workers at religiously-affiliated institutions, the Act also accommodates the scruples of employers who have religiously-based objections to contraceptive use.
As the Fifth Circuit observed, employers with religious objections to contraception can shift the responsibility for coverage to their insurers or the federal government. Hence, there is no unlawful burden on those employers from the mandate that health care plans cover the costs of contraception.
Of course, the decision was rendered by a panel of three judges rather than the full court, and the panel included two judges appointed by Democratic presidents. But the third judge, Jerry Smith, who wrote the opinion and was appointed by President Reagan, is a staunch conservative who has not been sympathetic to reproductive rights in other cases.
If this case is an accurate guide, it may well turn out that the Hobby Lobby Court was correct when it observed that its decision recognized the interests of both employers and employees.