Tuesday, January 21, 2014

Balkinization: Hobby Lobby Part IV: The Myth of Underinclusiveness

Balkinization: <i>Hobby Lobby</i> Part IV: The Myth of Underinclusiveness:
by Marty Lederman  // Georgetown Law School
As I explained in an earlier post, the Affordable Care Act guarantees that virtually all Americans will be entitled to a wide array of “preventive health services,” which their insurance plan must make available without cost to plan participants and beneficiaries.  42 U.S.C. § 300gg-13.  These guaranteed cost-free services include cholesterol screening; colorectal cancer screening; diabetes screening for those with high blood pressure; certain immunizations; “evidence-informed preventive care and screenings” for infants, children, and adolescents, and “with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.”  Id. § 300gg-13(a)(4). 
Hobby Lobby and Conestoga Wood are seeking a religious exemption from the requirement that their employee insurance plans provide coverage of one such preventive health service for women—namely, certain forms of FDA-approved birth control.  (I discuss in this post which methods of contraception might be implicated.) 
If the plaintiffs were to receive the relief they seek, it would mean that their female employees would have to pay for such contraception themselves—and thus they would not enjoy a virtually universal new health care benefit that will be available to more than 99% of other women in the United States.

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