Will the Hobby Lobby Decision Open the Door for HIV-Related Health Insurance Restrictions?

In a landmark decision, the U.S. Supreme Court exempted closely held for-profit corporations from providing health insurance coverage for methods of contraception that violated the religious beliefs of corporation owners. The court ruled that Affordable Care Act (ACA) regulations requiring employers to facilitate employee access to all approved contraceptive methods violated the Religious Freedom Restoration Act (RFRA).

Advocates say that the decision on Burwell v. Hobby Lobby Stores, Inc. has the potential to open the door to employers wishing to restrict health insurance coverage for people living with HIV or those seeking PrEP (pre-exposure prophylaxis).

Speaking after a National Health Law Program (NHLP) press conference, Kimberly Inez McGuire, public affairs director of the National Latina Institute for Reproductive Health, said the Supreme Court decision could affect health insurance coverage for sexuality and gender diverse communities and people living with HIV.

"While ostensibly, the conversation in this case was around birth control, we know that once you open the door to discrimination around health care, you open the door to all sorts of discrimination that can have an impact on many different communities," McGuire said.

"Unfortunately, we know that religion is used to discriminate, in this country and around the world, not only against women who are seeking reproductive health care, but against [lesbian, gay, bisexual, transgender and queer] people ... and folks living with HIV who are seeking health care of any kind."

In "How the Hobby Lobby Decision Could Undermine the Fight Against HIV/AIDS," Carlos Maza of Media Matters speculates that the ruling could be used to limit access to PrEP.

"Given the opposition to Truvada [tenofovir/FTC] even within the gay community, it's not hard to imagine a religious employer making similar arguments to the ones made in the Hobby Lobby case to justify denying health insurance coverage for Truvada," he writes.

Speaking at the press conference, NHLP executive director Elizabeth Taylor said the ramifications of the Supreme Court decision were likely to be broad.

"Although the court emphasizes that these are closely held corporations and this is only about certain contraceptives, the court's analysis would apply to publicly-traded corporations and it would also apply to any other health benefit," she said.

"The fact that the court doesn't see that the same analysis could be applied to immunizations, antidepressants and blood transfusions is actually one of the most troubling aspects of this because the court seems to be 20 years behind science and evidence and thinks that contraception is not basic health care."

Under the RFRA, the U.S. government cannot substantially burden a person's exercise of religion unless the government demonstrates a compelling interest and unless the particular intervention is the least restrictive means of furthering that interest.

In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court acknowledged a compelling governmental interest in providing cost-free access to the challenged contraceptive methods.

The court noted that the government could, for example, assume the cost of providing contraceptives to women unable to obtain coverage due to their employer's religious objections. Or the government could extend the accommodation already available to religious non-profit organizations, which enables employers to opt out of providing contraceptive coverage and, in those cases, obliges insurers to provide coverage directly to employees.

"One of the problems with this decision is that you can imagine an employer being able to object to almost anything on religious grounds," Taylor said.

"The government has got to come in then and show a compelling interest for anything that an employer wants to challenge," she explained. "And then the question would be, 'Is there a less restrictive means to provide care to people living with HIV?' So the potential for damage is huge." Robert Greenwald, director of Harvard Law School's Center for Health Law and Policy Innovation, said the Supreme Court decision undermined the provision of whole-person care under the PPACA (Patient Protection and Affordable Care Act).

"When you start from a place of recognizing that the most important thing that we're trying to accomplish is whole-person care -- and that includes integration of primary care, specialty care, behavioral health, sexual and reproductive health care -- the idea then of having a Supreme Court decision that starts carving out exceptions to access to contraception undermines that principle and it's in that way that the decision is so damaging," Greenwald said.

However, he said it was important not to overstate the implications of the Supreme Court decision.

"We need to fight to hold the line to make sure that [the decision] is limited, as I believe the Supreme Court intended it to be, to very few closely held small enterprises," he said. "So most people do not need to worry and should still be entitled to, and be able to demand, their free preventive services."

Health sector advocates encouraged community members to learn as much as possible about the Burwell v. Hobby Lobby Stores, Inc. case and about the human right to health care.

Taylor urged the U.S. government to act quickly to ensure equitable health insurance coverage for all Americans, regardless of the religious beliefs of their employers.

"Congress can fix this because it is a statutory decision so RFRA could be amended to be clear that for-profit corporations don't exercise religion, or Congress could pass a statute that specifically prevents an employer from depriving its employees of health benefits on religious grounds," she explained.

"People with HIV and their allies have been fighting for a very long time for recognition, for health care, for funding for research," McGuire said.

"Latinas and other communities of color have fought for their civil and human rights and that fight continues ... In any of the work we do, we hope to stand side by side with everyone who is fighting for the human right to health care, and we hope that we can work together to get to a place where this right is no longer being questioned and undermined as it was in the Hobby Lobby case.

"As we say in Spanish, la lucha continúa -- the fight continues."

Katherine Moriarty is a consultant and freelance writer, based in Vancouver. She has 10 years of experience in the intersecting fields of public health and community development, with a focus on bloodborne virus policy and programming.