Yesterday the Nashua Telegraph ran an op-ed by Jeanne Shaheen on the Hobby Lobby decision that began with “employers can now deny coverage for birth control.”  That claim, that “now” employers can deny coverage is clearly untrue.

Under Obamacare tens of millions of women may be, to use Shaheen’s words, “denied” all of the 20 contraceptives that HHS says employers have to provide for free, never mind just the four that Hobby Lobby did not want to pay for based on religious beliefs.   Quoting directly from the Hobby Lobby decision:

All told, the contraceptive mandate “presently does not apply to tens of millions of people.” 723 F. 3d 1114, 1143 (CA10 2013). This is attributable, in large part, to grandfathered health plans: Over one-third of the 149 million nonelderly people in America with employer-sponsoredhealth plans were enrolled in grandfathered plans in 2013. Brief for HHS in No. 13–354, at 53; Kaiser Family Foundation & Health Research & Educational Trust, Employer Health Benefits, 2013 Annual Survey 43, 221. The count for employees working for firms that do not have to provide insurance at all because they employ fewer than 50 employees is 34 million workers. See The Whitehouse, Health Reform for Small Businesses: The Affordable Care Act Increases Choice and Saving Money for Small Businesses.

So that is approximately 84 million people, according to the United States Supreme Court, whose employers can, to use Shaheen’s words, “deny” them birth control.  Assuming one-half are women, that’s 42 million women whose employers can “deny” them birth control.

The obvious question, and one that I haven’t see the Nashua Telegraph editorial page raising is – How can Jeanne Shaheen, on the one hand disagree strongly with Hobby Lobby and claim it allows employers to “deny” birth control, yet on the other hand be OK with the contraception mandate not applying to companies with under 50 employees or with “grandfathered” plans?  Is she going to call for the contraception mandate to be applied to the 42 million women who works for employers with less than 50 employees or who have “grandfathered plans”?

As I have blogged elsewhere, Hobby Lobby’s employers are only “denied” birth control coverage if the Obama administration fails to make the same accommodation for Hobby Lobby as it makes for religious nonprofits.  Quoting from the United States Supreme Court decision:

… There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contra­ceptives at issue here and, indeed, to all FDA-approved contraceptives.

In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the em­ployees of these entities have precisely the same access to all FDA-approved contraceptives as employees of compa­nies whose owners have no religious objections to provid­ing such coverage. The employees of these religious non­profit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.

Will the Nashua Telegraph call out Jeanne Shaheen for leaving this out of her op-ed and creating the misleading impression that Hobby Lobby is the ultimate decision-maker as to whether its employees get the free contraceptives mandated by Obamacare?

Original republished with permission.

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