PolitiFact: Clinton overstates Hobby Lobby’s stance on contraception

This article was edited for length. To see a complete version and its sources, go to www.politifact.com/truth-o-meter/statements/2014/jul/03/hillary-clinton/hillary-clinton-says-hobby-lobby-salesclerk-not-go/.

“A salesclerk at Hobby Lobby who needs contraception … is not going to get that service through her employer’s health care plan because her employer doesn’t think she should be using contraception.”

Former Secretary of State Hillary Clinton during an interview June 30 at the Aspen Ideas Festival

Lots of major political figures have weighed in on the Supreme Court’s decision in Burwell vs. Hobby Lobby. A 5-4 majority ruled that a closely held, private corporation, such as the craft retailer Hobby Lobby, could decline on religious grounds to pay for certain kinds of contraceptives otherwise mandated in employee health coverage by the Affordable Care Act.

One of the most closely watched responses was that of former Secretary of State Hillary Clinton, the presumptive front-runner for the 2016 Democratic presidential nomination. Clinton addressed the case at the Aspen Ideas Festival in Colorado, calling the decision “deeply disturbing.”

“It’s very troubling that a salesclerk at Hobby Lobby who needs contraception, which is pretty expensive, is not going to get that service through her employer’s health care plan because her employer doesn’t think she should be using contraception,” Clinton said.

The Washington Post Fact Checker gave this claim Two Pinocchios out of a maximum of four. We thought we’d take our own look.

First, some background. The company’s owners say they object to four out of the 20 Food and Drug Administration-approved forms of contraception — the four that prevent implantation of the embryo. Two are forms of “emergency contraception,” sometimes called the “morning-after pill,” and two are intra-uterine devices, or IUDs.

Contrary to Clinton’s claim, Hobby Lobby’s website says the company does in fact support the other 16 forms of contraception.

We found no evidence to dispute the company’s assertion. So Clinton goes too far when she says the salesclerk “is not going to get” contraception through the company’s health care plan. And the fact that the company pays for 16 types undercuts Clinton’s claim that Hobby Lobby “doesn’t think she should be using contraception.”

Where Clinton’s claim includes a grain of truth is that the salesclerk will not have an unfettered choice in what form of contraception she gets.

Say the salesclerk is unable, for medical reasons, to use the birth control pill. An IUD might be a good alternative, but it would not be available to her under Hobby Lobby’s health care plan. IUD use has increased in recent years, and paying for one out-of-pocket means significant upfront expenses. If IUD implantation is taken off the table, the salesclerk may be forced to choose another method that may be less well-suited to her.

There’s another nuance that leave this question in something of a gray area.

The way the decision was written leaves some question about whether closely held, religious companies can choose to opt out of supporting any of the remaining 16 forms of contraception in their health plans. For the record, a spokeswoman said Hobby Lobby “will continue to cover all 16,” but that may not be the case for other companies.

Already, lower courts have allowed some companies to stop paying for a wider range of contraceptives than were at issue in the Hobby Lobby case, according to The Associated Press. Their cases are likely to work their way through the courts, and the Supreme Court has let those policies stand pending further appeals.

While the Hobby Lobby decision may open the door to judicial acceptance of more sweeping contraceptive bans, the specific comment we’re checking targeted Hobby Lobby — and it’s significantly flawed.

“To the extent she was talking about Hobby Lobby as an employer specifically, I think Clinton overstated her case,” said I. Glenn Cohen, a co-director of the Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics at Harvard Law School. He added, “It may be true for a subset of employees, and to the extent she was also referring to other potential employers who might ban all contraceptives, I think she is on firmer ground.”

Our ruling

Clinton said that “a salesclerk at Hobby Lobby who needs contraception … is not going to get that service through her employer’s health care plan because her employer doesn’t think she should be using contraception.”

There’s reason to believe that future court decisions could allow companies to forgo payment for all types of birth control, but Clinton’s claim refers specifically to Hobby Lobby. And in that context, her claim is greatly exaggerated.

Hobby Lobby doesn’t shun contraception entirely for its employees; it pays for access to 16 out of the FDA’s 20 approved methods. Where Clinton has a partial point is that an employee would be barred from having the company pay for four other types, even if one of those may be the best medical option for the employee’s needs. On balance, we rate the claim Mostly False.

UPDATE: After National PolitiFact first published this article, Clinton’s camp responded. A spokesman pointed to a line from Justice Ruth Bader Ginsberg’s dissent that “seems to be pretty in line with” Clinton’s comments. “The exemption sought by Hobby Lobby and Conestoga (Wood Specialties, another plaintiff in the case) would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.” PolitiFact stands by the rating of Mostly False.