Daily Business Review – Hobby Lobby a Potential Slippery Slope (July 3, 2014)

By July 30, 2014

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Hobby Lobby ruling a potential slippery slope

Commentary by Michael T. Landen

The U.S. Supreme Court’s decision extending religious rights to companies that don’t offer insurance coverage for contraception is limited insofar as it only applies to closely held businesses.

However, that limitation is deceiving since many large employers, such a Hobby Lobby, qualify as closely held based upon their ownership structure.

Monday’s decision is a potential slippery slope as it now opens the door to allowing employers to become involved in private medical issues such as fertility, birth control procedures (such as vasectomy or tubal ligation), psychiatric care and blood transfusions.

If a private employer’s religious beliefs can dictate the health care its employees receive, all kinds of care and procedures, some possibly life-saving, may be implicated.

Noticeably absent from the Hobby Lobby opinion is any meaningful discussion about other uses for birth control pills beyond preventing conception.

If the pills are medically necessary for another use, can an employer refuse to cover them? How deep can an employer delve into its employees’ personal medical history to glean this information?

The Supreme Court has also created a slippery slope for single women who have children. If this is inconsistent with an employer’s religious beliefs, can the employer refuse to pay for prenatal care or refuse to hire that person at all? What about care for the newborn baby?

The holding in Hobby Lobby could potentially impact not just the Affordable Care Act but other federal laws such as the Pregnancy Discrimination Act.

The full implications and breadth of the Supreme Court’s holding has yet to be explored.

All of these issues and many others will surely be in debate as the impact of the highest court’s ruling is felt on courts nationwide.

For these reasons, employers should consult with an employment attorney to better understand the impact of this decision on their businesses.

Michael T. Landen is a partner with Miami-based Kluger, Kaplan, Silverman, Katzen & Levine. Landen focuses his practice on commercial litigation and labor and employment law.