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Obamacare Survives Supreme Court to Fight Another Day

Mother Jones

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Hey, I finally got one right! The Supreme Court decided to keep Obamacare subsidies intact, with both Roberts and Kennedy voting with the liberal judges in a 6-3 decision. And apparently they upheld the subsidies on the plainest possible grounds:

Chief Justice Roberts wrote that the words must be understood as part of a larger statutory plan. “In this instance,” he wrote, “the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he added. “If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”

So this had nothing to do with the possibility that if Congress required states to build their own exchanges in order to get subsidies, that would be unconstitutional coercion on the states. That had been something a few of us speculated on in recent days. Instead it was a white bread ruling: laws have to be interpreted in their entirety, and the entirety of Obamacare very clearly demonstrated that Congress intended subsidies to go to all states, not just those who had set up their own exchanges.

So that’s that. As far as I know, there are no further serious legal challenges to Obamacare. The only challenge left is legislative, if Republicans capture both the House and the Senate and manage to get a Republican elected president. So let’s all hope that doesn’t happen, m’kay?

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Obamacare Survives Supreme Court to Fight Another Day

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The 8 Best Lines From the Supreme Court Decision That Saved Obamacare

Mother Jones

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The members of Congress may occasionally be sloppy boobs, but we must defer to them when their intent is clear. That’s the main message of the Supreme Court decision handed down this morning that protects Obamacare. The issue at hand was whether what was essentially a typo—a poorly worded sentence in the law—could be used to deny health care insurance subsidies to millions of Americans in states where the federal government (not the state government) set up an exchange in which consumers can purchase insurance. Writing for the majority in the 6-3 decision, Chief Justice John Roberts told the conservative plaintiffs who had tried to exploit a drafting error (which mentioned only exchanges created by states and not the federal government) to get out of town.

The majority opinion is mostly dry, with Roberts devoting much attention to justifying the court’s decision to consider the full intent of the law and not just the meaning of a few words in a single sentence. Here are some of the best passages:

1. When analyzing an agency’s interpretation of a statute, we often apply the two-step framework announced in Chevron, 467 U. S. 837. Under that framework, we ask whether the statute is ambiguous and, if so, whether the agency’s interpretation is reasonable. Id., at 842–843. This approach “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159 (2000). “In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” Ibid.

This is one of those cases… If the statutory language is plain, we must enforce it according to its terms. Hardt v. Reliance Standard Life Ins. Co., 560 U. S. 242, 251 (2010). But oftentimes the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” Brown & Williamson, 529 U. S., at 132. So when deciding whether the language is plain, we must read the words “in their context and with a view to their place in the overall statutory scheme.” Id., at 133 (internal quotation marks omitted). Our duty, after all, is “to construe statutes, not isolated provisions.” Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. 280, 290 (2010).

2. If we give the phrase “the State that established the Exchange” its most natural meaning, there would be no “qualified individuals” on Federal Exchanges. But the Act clearly contemplates that there will be qualified individuals on every Exchange.

As we just mentioned, the Act requires all Exchanges to “make available qualified health plans to qualified individuals”—something an Exchange could not do if there were no such individuals. §18031(d)(2)(A). And the Act tells the Exchange, in deciding which health plans to offer, to consider “the interests of qualified individuals . . . in the State or States in which such Exchange operates”—again, something the Exchange could not do if qualified individuals did not exist. §18031(e)(1)(B). This problem arises repeatedly throughout the Act. See, e.g., §18031(b)(2) (allowing a State to create “one Exchange . . . for providing . . . services to both qualified individuals and qualified small employers,” rather than creating separate Exchanges for those two groups).

These provisions suggest that the Act may not always use the phrase “established by the State” in its most natural sense. Thus, the meaning of that phrase may not be as clear as it appears when read out of context.

3. The upshot of all this is that the phrase “an Exchange established by the State under 42 U. S. C. §18031” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it is also possible that the phrase refers to all Exchanges—both State and Federal—at least for purposes of the tax credits.

4. The Affordable Care Act contains more than a few examples of inartful drafting.

5. Anyway, we “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Utility Air Regulatory Group, 573 U. S., at ___ (slip op., at 15) (internal quotation marks omitted). After reading Section 36B along with other related provisions in the Act, we cannot conclude that the phrase “an Exchange established by the State under Section 18031” is unambiguous.

6. Petitioners’ arguments about the plain meaning of Section 36B are strong. But while the meaning of the phrase “an Exchange established by the State under 42 U. S. C. §18031” may seem plain “when viewed in isolation,” such a reading turns out to be “untenable in light of the statute as a whole.” Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 343 (1994). In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.

7. In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—”to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.

8. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

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The 8 Best Lines From the Supreme Court Decision That Saved Obamacare

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In Anti-Obamacare Case, Ruth Bader Ginsburg Questions the Foundation of the Lawsuit

Mother Jones

During the Supreme Court oral arguments Wednesday morning in King v. Burwell, the case that threatens to destroy Obamacare, Justice Ruth Bader Ginsberg wasted no time in grilling the attorney seeking to eviscerate the Affordable Care Act about a significant technical matter that could blow up his case. As soon as Michael Carvin, the Jones Day partner representing the four plaintiffs named in the anti-Obamacare suit, started his opening statement, Ginsburg interrupted him with a slew of questions about whether his plaintiffs had a recognizable injury that would allow the case to proceed. A plaintiff, she declared, “has to have a concrete stake in the question…you would have to prove the standing if this gets beyond the opening door.”

With these queries, Ginsburg was picking up on a critical issue highlighted last month when Mother Jones broke the news that the four plaintiffs may have dubious claims of standing in this case. According to legal filings in the case, two of the plaintiffs were likely not adversely affected by Obamacare because they could claim an exemption from the law’s requirement to purchase health insurance due to their low income levels and high health care costs. The other two plaintiffs, Doug Hurst and Brenda Levy, would have benefited substantially from the Affordable Care Act had they obtained insurance through an Obamacare health exchange. (Levy said she was paying $1,500 a month for non-Obamacare insurance, which she could have bought on the federal health care exchange for $148 a month. Hurst, according to bankruptcy filings, had been paying more than $600 a month for his insurance in 2010. The ACA would have provided him insurance for $62 a month.)

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In Anti-Obamacare Case, Ruth Bader Ginsburg Questions the Foundation of the Lawsuit

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Obamacare Will Cover About 19 Million People This Year

Mother Jones

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With the signup deadline now past, we have a pretty good idea of how many people will be getting health care coverage via Obamacare in 2015. Here’s a rough estimate:

+11.4 million: confirmed signups for private coverage.
-1.8 million: likely attrition rate (nonpayers, dropped coverage, etc.)
+9 million: covered via Medicaid expansion

The Medicaid number will rise throughout the year, and is higher if you use a looser way of counting. Needless to say, it would also be higher if all the holdout states joined in. For now, though, using a strict count just through February, the Obamacare total stands at about 18.6 million people—and will likely rise a bit more thanks to state extensions of the deadline. So call it 19 million or so.

That’s a lot of people. If you got into politics to help actual people with actual problems, you should be damn proud of voting for the Affordable Care Act in 2010. No other legislation of at least the past two decades even comes close to its real-world impact.

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Obamacare Will Cover About 19 Million People This Year

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America’s Largest Health Care Company Tells Supreme Court That Anti-Obamacare Argument Is "Absurd"

Mother Jones

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If getting rid of Obamacare is such a good idea, why isn’t corporate America getting behind King v. Burwell, the Supreme Court case designed to demolish the Affordable Care Act? More than 52 different parties have weighed in with briefs in advance of oral arguments on March 4. Of those, 21 have been filed on behalf of the plaintiffs, who claim millions of Obamacare consumers are receiving illegal health insurance subsidies. The groups filing these briefs include libertarian think tanks, pro-life organizations, Christian legal shops, and some conservative Republican legislators. But not a single business group—not the US Chamber of Commerce, not any of the health industry companies and trade groups that opposed the law when it was being drafted—has presented a brief endorsing this lawsuit.

Meet the Unusual Plaintiffs Behind the Supreme Court Case That Could Destroy Obamacare

These outfits are either backing the Obama administration’s attempt to defeat the suit or sitting out this case. Briefs in the case help explain why: Obamacare is working. There’s no better evidence of this than a brief filed on behalf of the government in King by the Hospital Corporation of America, better known as HCA, the largest health care provider in the country (once run by Obamacare foe Florida Gov. Rick Scott). HCA argues that the legal theory advanced by the plaintiffs is “absurd,” but, more importantly, it presents detailed data drawn from its own operations that demonstrate that the health care law is helping patients and the company itself.

One of Congress’ goals in passing the Affordable Care Act (ACA) was to cut down on the number of uninsured people using expensive emergency rooms for medical care that would be better delivered in an ordinary doctor’s office. HCA notes in its brief that its data from 15 states that use the federal Obamacare exchange show this is exactly what’s happening. The company says that in 2014, uninsured patients visited the ER in its facilities 10 times for every one admission to the hospital—a sign that most of those ER visits weren’t emergencies. People insured through the exchange are visiting the ER three times for every one admission. HCA estimates that “uninsured patients are 300% more likely than Exchange patients to rely on ER care.”

Moreover, the data shows that a person who has obtained insurance through the federal Obamacare exchange is nearly twice as likely to use outpatient care—an indication that they are taking better care of themselves and obtaining care in a much less expensive fashion than those without insurance. “Thus, at the same time that Exchange patients are relying less on the ER, they are receiving more outpatient care than the uninsured, including care (such as chemotherapy) that is typically unavailable in the ER,” HCA says in its brief. “That care is being provided in more appropriate and cost-effective settings.”

DV.load(“//www.documentcloud.org/documents/1658126-hca-amicus-aca.js”, width: 630, height: 500, sidebar: false, container: “#DV-viewer-1658126-hca-amicus-aca” ); HCA Amicus Brief Filed in Supreme Court (PDF)
HCA Amicus Brief Filed in Supreme Court (Text)

HCA’s data also note that women are benefiting immensely from the Obamacare exchanges. The company reports that 53 percent of its uninsured patients are female. But 65 percent of its patients receiving exchange insurance are women. And many of them are using this insurance coverage to obtain cancer treatment.

Seventy-seven percent of the oncology treatments HCA provided to its exchange-based patients went to women. The ACA has, according to HCA, made breast cancer treatment vastly more available to women. Its federal exchange patients are more than three times more likely than uninsured women to get an ultrasound for a breast lump or abnormal mammogram.

HCA has an obvious interest in this case, for the plaintiffs in King are threatening the company’s sizable bottom line, as well as the grand bargain promised by the Obama administration and the law’s drafters in the effort to get it passed. In its brief, HCA says that Obamacare has already cost it more than $600 million in revenues between 2010 and 2014—and that’s just in the 15 states that haven’t created their own exchanges and where HCA has at least one facility. The decreases were part of the deal forged by the drafters of the ACA. The plan was for hospitals to agree to cuts in federal reimbursement for treating the uninsured, but in exchange they would benefit from an influx of newly insured patients.

HCA says that it has only recently begun to see new revenue come in. (Of the roughly 134,000 patients with federal exchange-based insurance who visited an HCA facility last year, 62 percent had never been there before. This suggests that the new insurance program was definitely driving business to HCA’s hospitals and clinics.) If the Supreme Court kills off the Obamacare subsidies, HCA says it will have to absorb about $350 million in initial losses and far more in the future.

In effect, HCA is telling the court that Obamacare is good for both corporate America and individual Americans getting insured through it.

An HCA lawyer didn’t return a call for comment, but that argument—emphasized by HCA in its brief, which mentions the lack of business community support for the King plaintiffs—may be aimed squarely at Chief Justice John Roberts Jr. Lawyers for the King plaintiffs have publicly opined that the conservative justices on the court will relish this opportunity to kill the ACA. But these attorneys may be miscalculating when it comes to Roberts, who provided the fifth critical vote to save Obamacare the last time the ACA faced a major challenge in the Supreme Court.

Roberts is a conservative, but he’s also a former corporate lawyer. During his tenure, he has consistently sided with corporate America and the Chamber of Commerce in all sorts of cases. An ideologically driven case like King might provide good fare for the court’s conservatives—but Roberts may draw the line at ruling in these plaintiffs’ favor when they are threatening the profits of big business. At least, that’s what one of the nation’s biggest health care companies is now hoping for.

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America’s Largest Health Care Company Tells Supreme Court That Anti-Obamacare Argument Is "Absurd"

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The Sneaky New Way Republicans Could Sabotage Obamacare

Mother Jones

Now that Republicans control Congress, they’re again threatening to end Obamacare. On Monday, Senate Majority Leader-elect Mitch McConnell (R-Ky.) vowed to hold a repeal vote when Republicans take over the upper chamber in January, adding that GOPers “will go at that law…in every way that we can.” Obamacare is not going anywhere as long as President Barack Obama is in office. But there is a sneakier way GOPers could deal a blow to the health care law in the next two years: They can make the law look more costly than it is, boosting the case for dismantling it.

In 2012, the Congressional Budget Office (CBO)—which produces official budget projections—calculated that the combined effect of the tax increases and spending cuts in the Affordable Care Act will reduce the deficit by $109 billion over the next decade. (This is the CBO’s most recent estimate.) Conservatives cried foul, saying that the CBO double-counted savings in the law and ignored billions in health care spending in order to make the economic effects of the law seem rosier than they were. They charged that Obamacare actually adds billions to the deficit. The CBO and other economists say these assertions are nonsense. But Republicans kept complaining. Now that they control both houses of Congress, they can do something about it. All GOPers have to do is install a new CBO director who is willing to change the agency’s budget math to make it appear that Obamacare adds to the deficit. Republican leaders are reportedly considering roughly a dozen candidates to replace the current CBO chief, Doug Elmendorf, and conservatives are demanding a new director who doesn’t “cook the books” on Obamacare.

In a letter to House and Senate GOP leadership last month, conservative anti-tax activist Grover Norquist called Elmendorf’s analysis of how Obamacare would affect the budget a “facade” and urged Republicans to replace him. Democrats fear that Republicans will appoint someone who is willing to change the math to make Obamacare look more expensive, according to a congressional aide. At least one of the candidates Republicans are reportedly considering—James Capretta, a health care policy expert at the conservative American Enterprise Institute—is on record claiming the law increases the deficit.

Spokesmen for Senate budget committee chair Jeff Sessions (R-Ala.) and House budget committee chair Rep. Tom Price (R-Ga.), who will have the final word in selecting the new CBO director, declined to comment. But Sessions and fellow Republicans on his committee agree that the CBO should change how it calculates Obamacare’s effects on the budget. In October, the Senate budget committee’s Republican staff released a report claiming the Affordable Care Act will increase the federal deficit by $131 billion over the next decade, and touted support for the new analysis from several conservative health policy experts.

The CBO stands by its math. Elmendorf wrote in June that the CBO and the Joint Committee an Taxation, which calculates how tax laws affect revenue, “have no reason to think that their initial assessment that health reform would reduce budget deficits was incorrect.”

“CBO has accounted for deficit reduction in exactly the same way in previous Congresses, under both political parties,” Paul Van de Water, a senior fellow at the left-leaning Center on Budget and Policy Priorities (CBPP), wrote in 2012. “Until opponents of health reform latched onto the notion, no one accused CBO of faulty accounting.”

If Republicans succeed in making the law look like a huge burden on taxpayers, they could ease the way for efforts to chip away at the health care law, says Lawrence Jacobs, a political science professor at the University of Minnesota and coauthor of Health Care Reform and American Politics: “The conservative push is serious and part of the subterranean attack to ‘prepare the battlefield’ for the new Republican Congress.”

It is still possible that GOPers will reappoint Elmendorf as CBO director. Several prominent conservative economists have praised his work. But congressional aides told the New York Times last week that they are betting against him.

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The Sneaky New Way Republicans Could Sabotage Obamacare

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Justice Scalia Goes to Conservative Legal Event, Gives Boring Speech

Mother Jones

The Federalist Society kicked off its national convention Thursday in Washington, DC, with a speech from Supreme Court Justice Antonin Scalia, who is one of two justices headlining the event. The other is Justice Samuel Alito, who is on tap for the conservative legal group’s big dinner Thursday night.

For years, liberal good-government types have been criticizing Scalia and the other conservative justices for participating in Federalist Society functions. The events also serve as fundraisers for the organization, which promotes conservative positions in the nation’s ongoing legal debates. Critics contend that the involvement of Scalia et. al. violates various legal ethics codes. In 2011, for instance, Scalia and Justice Clarence Thomas attended the annual dinner associated with the Federalist Society’s national convention—hours after the Supreme Court decided whether to take up the main challenges to the Affordable Care Act. And it just so happened that the law firms representing the Obamacare challengers were sponsors of that dinner and that lawyers from those firms were among the guests rubbing shoulders with Scalia and Thomas.

Bob Edgar, president of Common Cause, said at the time, “This stunning breach of ethics and indifference to the code belies claims by several justices that the court abides by the same rules that apply to all other federal judges. The justices were wining and dining at a black-tie fundraiser with attorneys who have pending cases before the court. Their appearance and assistance in fundraising for this event undercuts any claims of impartiality, and is unacceptable.”

But such complaints have not caused Scalia and his conservative brethren to rethink their cozy relationship with the Federalist Society, and this morning the group could once again boast a big get—the often fiery justice who is a hero within conservative legal circles. But if any of the conventioneers were hoping for fireworks from Scalia, they were sorely disappointed. Rather than opine on Hobby Lobby and religious freedom or the Affordable Care Act and government overreach, Scalia spent 30 minutes at the dais lecturing on the history of Magna Carta—”No definite article!” he insisted—and its influence on American law.

Scalia mostly stuck to legal issues from the 13th century. He might well have been a curator from the Library of Congress, where the Magna Carta is currently on exhibit (sponsored, incidentally, by the Federalist Society). Scalia ended his speech by urging everyone to go see the 800-year-old document.

In years past, the conference has drawn an all-star lineup of firebrand conservative politicians and aspiring presidential candidates: Sen. Marco Rubio (R-Fla.), Sen. Ted Cruz (R-Texas), Republican Gov. Rick Scott of Florida, Sen. Mike Lee (R-Utah), and incoming Senate majority leader Mitch McConnell (R-KY). But this year, the only politician of note on the schedule is Utah Sen. Orrin Hatch (R). The rest of the usual suspects are basking in the glow of the GOP’s Election Day victories and preparing for their takeover of the Senate. As for Scalia, if attendees want to see him let loose, they might have to wait for his next Supreme Court opinion.

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Justice Scalia Goes to Conservative Legal Event, Gives Boring Speech

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Mitch McConnell Can Barely Form a Coherent Sentence About Obamacare Now

Mother Jones

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Mitch McConnell came prepared with a soundbite. The Affordable Care Act, the Republican Senate minority leader declared during a debate Monday, is “the worst piece of legislation in the last half-century,” and needed to be pulled out “by the roots.” But when it came to actually getting rid of the law—specifically Kynect, his state’s popular new insurance exchange, and the associated expansion of Kentucky’s Medicaid rolls—McConnell’s tough talk began to fade.

“With regard to Kynect, it’s a state exchange, they can continue it if they’d like to,” he said. He went on: “With regard to the Medicaid expansion, that’s a state decision, the states can decide whether to expand Medicaid or not.” When asked, once more, if he supported the state’s decision to create Kynect and expand Medicaid, McConnell finally conceded, “Well that’s fine, yeah. I think it’s fine to have a website.”

McConnell, one of his party’s loudest voices against Obamacare, could barely put together a sentence when pressed on the specifics of what he’d do about it. And he isn’t alone. At a Senate debate in Arkansas on Monday, GOP Rep. Tom Cotton, who is challenging Democratic Sen. Mark Pryor, talked tough about repealing “Obamacare,” but when asked directly, declined to say whether his state’s version of Medicaid expansion, known as the “private option,” ought to get the boot. (In not answering the question, he did manage to say “Obama” 13 times in two minutes.) This has been Cotton’s approach to the question for months now, and it’s not hard to see why he’s so cautious—the private option was approved by a Republican-controlled state legislature and even has the backing of his party’s gubernatorial nominee, former Rep. Asa Hutchinson.

And in Iowa on Saturday, GOP state Sen. Joni Ernst, who is seeking the Senate seat being vacated by Democrat Tom Harkin, was asked by a man who had received insurance through the Affordable Care Act about how she’d propose to keep him insured after the law is repealed. She ignored the question.

The GOP is still poised to win big in November. McConnell, Cotton, and Ernst all lead in the polls. But four years after the passage of Obamacare, Republicans are finding it harder and harder to say what they really think about it.

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Mitch McConnell Can Barely Form a Coherent Sentence About Obamacare Now

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5 Plants You Can Grow from Your Garbage!

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5 Plants You Can Grow from Your Garbage!

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Hobby Lobby’s Hypocrisy: The Company’s Retirement Plan Invests in Contraception Manufacturers

Mother Jones

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When Obamacare compelled businesses to include emergency contraception in employee health care plans, Hobby Lobby, a national chain of craft stores, fought the law all the way to the Supreme Court. The Affordable Care Act’s contraception mandate, the company’s owners argued, forced them to violate their religious beliefs. But while it was suing the government, Hobby Lobby spent millions of dollars on an employee retirement plan that invested in the manufacturers of the same contraceptive products the firm’s owners cite in their lawsuit.

Documents filed with the Department of Labor and dated December 2012—three months after the company’s owners filed their lawsuit—show that the Hobby Lobby 401(k) employee retirement plan held more than $73 million in mutual funds with investments in companies that produce emergency contraceptive pills, intrauterine devices, and drugs commonly used in abortions. Hobby Lobby makes large matching contributions to this company-sponsored 401(k).

Several of the mutual funds in Hobby Lobby’s retirement plan have holdings in companies that manufacture the specific drugs and devices that the Green family, which owns Hobby Lobby, is fighting to keep out of Hobby Lobby’s health care policies: the emergency contraceptive pills Plan B and Ella, and copper and hormonal intrauterine devices.

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Hobby Lobby’s Hypocrisy: The Company’s Retirement Plan Invests in Contraception Manufacturers

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