Let me make it very clear that it is my personal view that as a matter of ethics and decency women should be provided with both access to and funding for full, necessary and appropriate health care. However, it appears that there are five justices on the Supreme Court who are not entirely in agreement with me. I am interested in examining the legal permutations involved in this issue.
In the many diaries that have been written about the Hobby Lobby decision there is a recurring view that limiting funding for contraceptive medical services constitutes a violation of women's equal rights as provided by the 14th amendment to the constitution. People are raising the hope that somehow suits could be initiated that would ultimately establish such a constitutional position. It seems to me that this is not very likely to happen.
The core issue involved in the objections of corporate parties such as Hobby Lobby and religious organizations such as The Little Sisters of the Poor involves the forms of contraception that they see as inducing an abortion. There are medical and scientific questions about the accuracy of that view, but we are talking about religious belief and that is not closely tied to scientific evidence. So it seems that the ACA contraception mandate fits in with the long history of the debate about public funding for abortion care. The waters are muddy because abortion as such is not included in the list of essential benefits that ACA plans are required to provide.
The history of this debate centers around the Hyde amendment. It is not actually a free standing law but a rider that in various forms has been added to the budget for HHS in every year since 1976. There are several other related federal laws that prohibit federal funding for abortion in programs other than Medicaid.
The Hyde Amendment inspired the passage of other similar provisions extending the ban on funding of abortions to a number of other federal health care programs. Consequently, those federal government employees who wish to have abortions must pay for them "out-of-pocket". In addition, abortion services are not provided for U.S. military personnel and their families, Peace Corps volunteers, Indian Health Service clients, or federal prisoners.
The Hyde Amendment should not be confused with the Mexico City Policy, which prohibited US government funds from going to agencies that promote or perform abortions in other countries. It prevented funds to agencies that promoted abortion regardless of whether or not they actually performed them, while the Hyde Amendment has a more limited scope.
The Stupak–Pitts Amendment, an amendment to the Affordable Health Care for America Act, was introduced by Democratic Rep. Bart Stupak of Michigan. It prohibits use of Federal funds "to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion" except in cases of rape, incest or danger to the life of the mother,[8] and was included in the bill as passed by the House of Representatives on November 7, 2009. However, the Senate bill passed by the House on March 21, 2010 did not contain that Hyde Amendment language. As part of an agreement between Rep. Stupak and President Obama to secure Stupak's vote, the President issued an executive order on March 24, 2010 affirming that the Hyde Amendment would extend to the new bill.[9]
The first legal challenge to the Hyde Amendment reached SCOTUS in the case of
Harris v McRae.
Harris v. McRae, 448 U.S. 297 (1980),[1] was a case in which the Supreme Court of the United States held that States that participated in Medicaid were not required to fund medically necessary abortions for which federal reimbursement was unavailable as a result of the Hyde Amendment, which restricted the use of federal funds for abortion. The Court also held that the funding restrictions of the Hyde Amendment did not violate either the Fifth Amendment or the Establishment Clause of the First Amendment.
That is why all of those federal restrictions to abortion funding continue in force. That is why various states have been able to impose their versions of funding restrictions. On the other hand there are 17 states that use 100% state funds to provide abortion coverage under their Medicaid programs. There are also 28 states that have various requirements for insurance coverage of contraceptive health care. The Hobby Lobby decision will not stop any of those state programs.
The existing court precedent is that funding of health care is an entirely political matter and not a constitutional right. It seems very implausible that the present SCOTUS would have any inclination to change that position. A constitutional challenge does not seem likely to provide a solution to the problem of funding for contraceptive care or abortion care. The available possibilities for mitigating the impact of this decision are political, either through legislation or executive regulation.