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Explaining the Contraception Mandate Cases

Marty Lederman has a couple of posts at Jack Balkin’s blog that really help explain the details of the seemingly endless number of lawsuits filed against the contraception mandate in the Affordable Care Act. There are two different kinds of suits, those filed by religious non-profit organizations and those filed by for-profit companies with religious owners. The ACA has different requirements for those two types of plaintiffs. And there are actually different rules for two different types of religious non-profits:

As some of you may know, the Executive branch has provided two types of religious accommodations to nonprofit employers that object to the HHS Preventive Heath Services Rule:

First, some such employers–primarily, churches and their auxiliaries–are exempt altogether from the requirement that they include contraceptive coverage if they offer a health-insurance plan to their employees.  The women who work for such churches thus are virtually the only women in the United States who will not be afforded this new national benefit, which I described in further detail in this post.  The government’s explanation for this exemption is, in effect, that because such employers typically can and do prefer to hire employees who are coreligionists who can be assumed to share the churches’ religious commitments, such employees are less likely to wish to purchase birth control:  “[H]ouses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.”  78 Fed. Reg. 39,874 (July 2, 2013).

Under what I will call the “secondary accommodation,” other religious nonprofits who object to contraceptive coverage also can exclude it from their employee (and student) health-insurance plans.  These nonprofit organizations need only certify that they have religious objections to providing coverage for contraceptive services, in which case they will not be required “to contract, arrange, pay, or refer for contraceptive coverage.”  78 Fed. Reg. 39,872.  But with respect to most of this category of religious employers–in contrast to churches–the government has created a system in which their employees, who are not typically coreligionists, can still receive contraceptive coverage without cost-sharing, albeit from a different source.  If a religious nonprofit organization opts out, the insurance company that issues the policy to the employer, or the third-party administrator that administers the organization’s self-insured group health plan, generally must assume responsibility for contraceptive coverage and provide or arrange separate payments to employees for contraceptive services.  Such insurance issuers and third-party administrators are expressly prohibited from imposing any premium, fee, or other charge, directly or indirectly, on the employer/university or its group health plan with respect to contraceptive coverage.  45 C.F.R. § 147.131(c)(2)(ii); see also 78 Fed. Reg. 39,876-77.  The government has determined that insurance issuers, such as Aetna, will actually save money by providing separate contraceptive coverage (since it will thereby avoid the costs of unintended pregnancies).  And in the case of self-insured group health plans, the costs of coverage that would be incurred by the third-party administrator are borne instead by the federal government, in the form of an adjustment to the user fees paid by that third-party administrator on the federally administered exchange.

A few dozen nonprofit religious organizations have brought RFRA challenges to this secondary accommodation, even though the whole purpose and effect of the exemption is to relieve them of any obligation “to contract, arrange, pay, or refer for contraceptive coverage” if they offer health insurance to their employees (or students).  What could these nonprofit organizations possibly be complaining about?  In particular, how can they allege that a rule that exempts them from the condition that applies to for-profit employers such as Hobby Lobby nevertheless “substantially burdens” their exercise of religion?

So what about for-profit corporations like Hobby Lobby? A different set of rules:

As I noted in my opening post, the plaintiffs in the two cases before the Court allege that the “Preventive Services” Rule, issued by the Departments of Health and Human Services, Labor and Treasury, “substantially burdens” their exercise of religion for purposes of RFRA based on the following logic:

(i) federal law requires the companies in question to offer their employees access to a medical insurance plan;

(ii) the HHS Rule requires such an insurance plan to provide for coverage of “abortifacients”;

(iii) the companies’ provision of such insurance coverage would require the individual owners of the companies to “participat[e] in, provid[e] access to, pay[] for, train[] others to engage in, or otherwise support[] [the use of] abortion-causing drugs and devices”; and

(iv) the owners’ religions forbid them from doing so, because such actions make them “complicit” in their employees’ eventual use of “abortifacients.”…

1. Let’s begin with what the challenged HHS Rule requires. As I’ll discuss in my next post, neither the HHS Rule nor any other federal law requires employers to offer a health-care plan to their employees. What the Rule does, instead, is to specify certain coverage that must be contained in such plans that are offered.

Even prior to 2010, federal law required that group health insurance plans include coverage for several things, such as minimum hospital stays for mothers and newborns after birth, 29 U.S.C. § 1185; reconstructive breast surgery if the plan otherwise covers mastectomies, id. § 1185b; and routine patient costs for items and services furnished in connection with participation in certain clinical trials, 42 U.S.C. § 300gg-8.

The ACA made a significant addition to this list: Congress decided that virtually all Americans should be entitled to a wide array of affordable “preventive health services.” Many people receive such services through Medicare, or Medicaid, or by purchasing a plan (often with substantial government subsidies) on a government-run “exchange.” But many Americans receive their health insurance from a plan offered by their employers. Accordingly, the ACA requires that such employer plans–like all other plans–include the specified “preventive health services,” which must be made available without cost-sharing, that is, without requiring plan participants and beneficiaries to make copayments or pay deductibles or coinsurance. Id. § 300gg-13. These services include: cholesterol screening; colorectal cancer screening; diabetes screening for those with high blood pressure; certain immunizations; and “evidence-informed preventive care and screenings” for infants, children, and adolescents.

Most importantly for present purposes, the ACA also requires coverage “with respect to women, [of] such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.”

He’s doing a whole series of these posts explaining every aspect of the arguments being made. For those who are interested in the actual legal arguments rather than the political ones, as I am, I suggested keeping an eye on Balkinization.

Comments

  1. says

    Reginald Selkirk “A public option would circumvent all of this.”
    That’s Socialism!!! Everything I don’t like is. I’ve been told to not like this, for reasons too complicated for me to know (primarily it boils down to “Socialism!!!”).

  2. freemage says

    Reginald: Not quite. The Public Option is meant to be a competitor against private health insurers, but not a replacement. That is, Hobby Lobby could still choose to go with a health plan from BCBS for their employees, and would still be demanding that their version not include the contraception mandate.

    Now, single-payer would kick all this stupidity to the curb, since it would just be the federal government determining what was and wasn’t paid for by a national health plan. More viable under our current political scheme would be a Public Option which also declared that employer-provided health benefits had to take the form of a voucher for some amount that the employee could then take to whatever insurer he or she wanted.

    But what bothers me about most of these analyses is that they usually portray this as a two-sided battle–the employer’s right to religious freedom vs. the government’s legitimate need to set standards for insurance. This overlooks the employee’s right to freedom of religion w/ re: their employment, which is, in my opinion, the real issue here.

    Employer-provided insurance is compensation for work performed; it’s a specialized form of wage, nothing more or less. As such, it makes no more sense to insist that the company have the right to refuse to let the employee define what health care they desire than it does to let them forbid employees from spending their paycheck on an actual abortion.

  3. tbp1 says

    I’m sure I’m not the first person to put forward this argument, but I oppose any exemption whatsoever, on the grounds that the money employers put towards benefits isn’t their money in the first place. It’s the employees’ money, as it is part of their compensation package, just as much as their actual paycheck is.

    I think most people would agree that your employer doesn’t get to tell you what you can spend your salary on. Your Mormon employer can’t forbid you to purchase alcohol or caffeinated drinks, your Jehovah’s Witness boss can’t forbid you to pay for a blood transfusion if you need it, etc. etc.

    Of course the next step in our increasingly authoritarian utopia is to give employers the right to do exactly that, but we’re not there yet, as far as I know.

  4. cry4turtles says

    I imagine the end goal of religothugs is to have the authority to tell all of (us) their employees that (we) they can NOT use contraception at all. Totally forget about it. Hop on the way back machine.

  5. says

    freemage “But what bothers me about most of these analyses is that they usually portray this as a two-sided battle–the employer’s right to religious freedom vs. the government’s legitimate need to set standards for insurance. This overlooks the employee’s right to freedom of religion w/ re: their employment, which is, in my opinion, the real issue here.”
    Employees don’t have religious freedom. They have religious privilege (granted by their Job Creators).

    “As such, it makes no more sense to insist that the company have the right to refuse to let the employee define what health care they desire than it does to let them forbid employees from spending their paycheck on an actual abortion.”
    Wait for it. If it turns out to be okay for their “deeply held religious beliefs” to restrict their employee’s use and availability of non-monetary compensation, monetary compensation is next. Too crazy to happen? Did anyone think that in 2014 we’d be seriously discussing an employer’s right to restrict employee’s coverage, not only in a for-profit corporation, and not only based on the boss’s beliefs, but on beliefs that are wrong?

     
    tbp1 “Of course the next step in our increasingly authoritarian utopia is to give employers the right to do exactly that, but we’re not there yet, as far as I know.”
    Civil Rights is a zero sum game. As such, Job Creators should (nay, must!) get theirs over those of their employees, at the expense of their employees’. Job Creators, as with everything else, earned it.

  6. says

    The government’s explanation for this exemption is, in effect, that because such employers typically can and do prefer to hire employees who are coreligionists who can be assumed to share the churches’ religious commitments, such employees are less likely to wish to purchase birth control

    Um. Isn’t this the government discriminating against certain women because of their religion (i.e. by not providing the same exemption offered to other non-profits)? To me, it seems like saying that a woman who is employed at, say, a Catholic Church isn’t allowed to go to the state and avail herself of a divorce because she’s probably Catholic and the Church forbids divorce. One’s employer shouldn’t be allowed to dictate what services the government provides or doesn’t provide, whether or not that employer is a church, religious profiteer, religious non-profit, or a regular for-profit business owned by a religious whackjob. The Church should only be allowed religious remedies: if a woman in their employ uses the birth control, let her choose to confess her “sin” and do penance for it, just like they do other adherents who don’t happen to work for them.

  7. barryd says

    cry4turtles

    “I imagine the end goal of religothugs is to have the authority to tell all of (us) their employees that (we) they can NOT use contraception at all. Totally forget about it. Hop on the way back machine.”

    There are two things going on – first, Hobby Lobby is trying to sneak contraception in under abortion. Second, they are basically saying that an employer can get religious exemptions from labor law.

  8. cry4turtles says

    barryd, I agree; however, does anyone think the RR would stop, even if they succeed in outlawing abortion? In other words, give them a mile, and they salivate over the subsequent inches.

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