Given the outrage from the perpetual outrage machine and some of the not so perpetually outraged, I thought I should take a look at the Health and Human Services rule that has the Catholic bishops so worked up.
Apparently what is going on is this. The Affordable Care Act specifies that a group health plan and a health insurance issuer offering group or individual health insurance coverage must provide benefits for and prohibit the imposition of cost-sharing with respect to:
Evidence-based items or services that have in effect a
rating of A or B in the current recommendations of the United States
Preventive Services Task Force (Task Force) with respect to the
individual involved.
Clear as mud so far. But, basically, the Task Force was charged with recommending the most important services or items that had to be covered by group health plans without requiring cost sharing by the insured. As part of this process, the Health Resources and
Services Administration was tasked with developing comprehensive guidelines for preventive care and screenings with respect to women. (See HHS docket HHS-OS-2011-0023-0002). As part of that process:
Most commenters, including some religious organizations, recommended that HRSA Guidelines include contraceptive services for all women and that this requirement be binding on all group health plans and health insurance issuers with no religious exemption. However, several commenters asserted that requiring group health plans sponsored by religious employers to cover contraceptive services that their faith deems contrary to its religious tenets would impinge upon their religious freedom.
These guidelines apply to non-grandfathered group health plans and health insurance issuers. HHS didn’t go quite as far as HRSA recommended, deciding instead to offer exemptions for certain (but not all) religious institutions. The exemption applies to a religious employer that:
(1) Has the inculcation of religious values as
its purpose;
(2) primarily employs persons who share its religious
tenets;
(3) primarily serves persons who share its religious tenets;
and
(4) is a non-profit organization under section 6033(a)(1) and
section 6033(a)(3)(A)(i) or (iii) of the Code. (Section 6033(a)(3)(A)(i) and (iii) refer to churches, their integrated auxiliaries, and
conventions or associations of churches, as well as to the exclusively religious activities of any religious order.
HHS explained that its intent was “to reasonably balance the extension of any coverage of contraceptive services under the HRSA Guidelines to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.”
HHS did not come up with this in a vacuum. Once they decided that contraception was an important part of a woman’s health care, they looked to the States that had also made that determination to see how they handled religious exemptions. Here is a chart. Eight of those states provided more expansive religious exemptions than those adopted by the HHS rule. The remainder were similar to or more restrictive than HHS. If I’m reading the chart correctly, Colorado doesn’t allow any exemptions. Arizona, California, New York, and Oregon are less permissive with religious exemptions than the HHS rule. Arkansas, Maine, Massachusetts, Michigan, New Jersey, North Carolina, and Rhode Island have exemptions comparable to the HHS rule. And, Delaware, Hawaii, Illinois, Maryland, Missouri, Montana, and New Mexico have a more expansive exemption. Interestingly, Connecticut seems to require that, if there is a religious objection, the entity can opt to provide the required contraceptive coverage through a subcontractor or third party insurer.
I’ll just leave it at that for now. I might get into a more general discussion about morality and contraception later.
Update I recalled that the Supreme Court had recently decided a case that had something to do with a religious organization’s duty as an employer to abide by the employment laws that apply to everyone else and the special privileges it enjoys with respect to such laws because of its status as a religious organization. It wasn’t necessarily on point, but it gave me the overview on how the Court thinks of such things. The case was Hosanna-Tabor Evangelical Lutheran Church v. EEOC. The court there recognized a ministerial exception allowing churches to choose their ministers in violation of the Civil Rights Acts.
But, in the context of this contraception issue, I thought these paragraphs were fairly useful:
The EEOC and Perich also contend that our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), precludes recognition of a ministerial exception. In Smith, two members of the [*15] Native American Church were denied state unemployment benefits after it was determined that they had been fired from their jobs for ingesting peyote, a crime under Oregon law. We held that this did not violate the Free Exercise Clause, even though the peyote had been ingested for sacramental purposes, because the “right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id., at 879 (internal quotation marks omitted).
It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of “physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).
(Emphasis added). I’d say that the HHS rule is focused on physical acts and, by providing an exception for churches themselves – as opposed to their less inherently religious activities like hospitals – is attempting to steer away from the faith and the mission of the church itself. The valid and neutral law is one of general applicability that prescribes activity that some churches proscribe. Seems like the kind of thing allowed under Smith.
Thank you so much for providing clarity on this, and separately from the other aspects of the issue. Knowing the reality behind a topic is very helpful. Of course there are always those who choose not to understand, but that is their choice. They do have the opportunity to approach an issues with a foundation in the facts of the matter, and they can accept or reject the opportunity.
So your point is that the Administration did not call an assembly of Satan and his minions in the dead of night to do this, but instead followed the customary methods of gaining plausible deniability, such as “don’t blame us; the Task Force made us do it” and “some religious organizations even agreed”?
I’m not feeling all that much better yet.
Conservatives are routinely reamed out for insularity and insensitivity. I’d say the Administration is guilty of both on this one.
I’m going to try to step back from the nitty-gritty for a meta-view of how this may undermine the whole Obamacare package. I haven’t railed against it, but the devil (if you’ll pardon the expression) seems to be coming out in the regulatory details.
The difference though is that the administration is erring on the side of HELPING people, not causing unnecessary harm or destruction. Giving people access to medicine that helps their health while also giving them the free will to choose whether or not to use it (like an adult, not bowing to some ideologue clergyman) is a good thing, not a bad thing.
Plus, as the polling showed yesterday, 98% of Catholic women use birth control, they clearly want it even if their clergymen doesn’t think they should have it.
In this case, my point is to describe what the rule requires and how the decision makers explained themselves. What I’d heard on cable political shows had given me precious little context, so I thought I’d look it up.
The minute we have government dictating to relgious groups what they must do, the First Amendment Free Exercise Clause goes out the window. This really is a no brainer…the Obama administration can’t make the Catholic church provide contraception coverage which is against the tenets of the Church. To do otherwise is to violate the Constitution.
So, for example, if we told members of the Native American Church that they were precluded from ingesting peyote, that’d be a no brainer. We can’t have the government dictating to believers on matters of conscience.
Yes, heaven forbid that the government dictate to religious groups things that they must do! Things like not sacrificially killing their members, not sexually abusing children, not marrying multiple wives…etc. Sorry Paul but government has been dictating things that religions cannot do or must do for a long time. You’ve already missed that boat.
All the things you list are things they must not do. What are the other things that the government has dictated that religions must do?
Have a non-discriminatory purpose when they discharge non-ministerial employees.
Also, you can look at this as a prohibition — church affiliated hospitals are prohibited from purchasing group insurance policies that does not include contraception.
As a few examples – Religions still have to pay SS and Medicare taxes for their employees (note that excludes priests, ministers, etc). They still pay state sales taxes in many (not all) places on goods purchased. There are a lot of things that religions are required to do. Try not showing up to a court date and saying that government can’t compel you to do something because of your religion and see how far that gets you.
The fact that the government can tell you what you can’t do implies that they are also telling you what you can do.
Thanks for the examples. Still trying to figure out where I come down on this one.
That’s it! As of tomorrow I’m a Rastafarian. All praise to Jah!
This morning’s Wall Street Journal brings (in front of the pay wall, I believe) the sort of meta-view I alluded to wanting. It’s quite good – not as a conclusive case for a broader religious exemption, but as a challenge to the screwed-up way we do health insurance. http://ow.ly/8XXKy
Requires subscription to read more than the first paragraph or two, unfortunately. But, I would agree that this is a further indictment of our jacked up insurance system.
I’ve been a proponent of the public option. If we simply levied a general fund tax that paid for every citizen’s health insurance, including contraceptive coverage, the religious objection to that coverage would be on par with tax dollars that go toward wars or the death penalty in spite of religious objections. The current system is a requirement that the employer pay an insurance premium which, I suppose, is somewhere on the continuum between tax dollar and direct purchase.
And, I agree with those who point out that there is not a good connection between employment and health insurance that recommends dropping the insurance function in the lap of employers; an arrangement, I’m told, that was a function of war-time wage restrictions and tax incentives.
Much seems to be made here concerning the line between churches as churches, and churches as operators of hospitals and educational institutions. Few would disagree that the former group ought not to be be required to pay for contraceptives. Those up in arms about the Administration’s decision are upset because the latter are having thier First Amenmdnet freedoms trampled. One wonders, though, why the line is drawn only churches and educational institutions. What’s unique about those functions as opposed, say, the church deciding that it can spread God’s work on earth by providing wholesome family style meals in restaurants whose walls are filled with religious imagery. The idea spreads like wildfire and before you know it, the number of eating places rivals that of MacDonald’s. Sould that restaurant chain be required to cover contraceptives? Change the scenario from church owned to ownership by very committed lay Catholics with s very strong religious conviction against contraception. Why wouldn’t their First Amendment rights be any less important than if they were ordained?
Employer-based health insurance is a result of historical accident, and when supplemented by Medicare and Medicaid in the 1960’s, delivered broad coverage until the early 1980’s when American healthcare costs decoupled from the rest of the developed world and began their stratospheric increases while other countries were able to contain cost increases. Lots of reasons are posited for these huge increases, none completely satisfactory.
But more importantly, Doug, your reading of Supreme court caselaw is correct. Mandated contraceptive coverage is a law of neutral and general applicability and therefore not violative of the Free Exercise clause.
And most ironically, as I prepare to go to 8:30 Mass (a family obligation, not a retreat from my steadfast hypostacy), I would quote that illustrious Hoosier Earl Butz in regards to the Letter from the Catholic Bishops, “Nonplaya da game, no maka da rules.”
I meant “apostasy” not “hypostacy.”
I have been grace fallen so long I forgot the name for my debased condition.
Notna duplicate.
Good points well put.
Largely lost in the fuming over some supposed moral dilemma is that THE HEALTH CARE LAW DOES NOT FORCE EMPLOYERS TO ACT CONTRARY TO THEIR BELIEFS–unless one supposes the employers’ religion forbids even payment of money to the government (all of us should enjoy such a religion). In keeping with the law, those with conscientious objections to providing their employees with qualifying health plans may decline to provide any health plans and pay an assessment instead or, alternatively, provide plans that do not qualify (e.g., without provisions they dislike) and pay lower assessments.
No moral dilemma, no need for an exemption. That the employers must at least pay an assessment is hardly justification for an exemption. In other contexts, for instance, we have relieved conscientious objectors from required military service, requiring them instead to provide alternative service in noncombatant roles or useful civilian work. In any event, paying assessment does not pose a moral dilemma, but rather a garden-variety gripe common to most taxpayers–who don’t much like paying taxes and who object to this or that action of the government. Should each of us feel free to deduct from our taxes the portion that we figure would be spent on those actions (e.g., wars, health care, teaching evolution, subsidizing churches, whatever) each of us opposes?
Questions about the government requiring or prohibiting something that conflicts with someone’s faith are entirely real, but not new. The courts have confronted such issues and have generally ruled that under the Constitution the government cannot enact laws specifically aimed at a particular religion (which would be regarded a constraint on religious liberty contrary to the First Amendment), but can enact laws generally applicable to everyone or at least broad classes of people (e.g., laws concerning pollution, contracts, fraud, crimes, discrimination, employment, etc.) and can require everyone, including those who may object on religious grounds, to abide by them. Were it otherwise and people could opt out of this or that law with the excuse that their religion requires or allows it, the government and the rule of law could hardly operate.
Looks like the Bishops are doubling down…
http://thinkprogress.org/health/2012/02/09/421871/catholic-bishops-demand-all-businesses-be-given-the-right-to-deny-women-contraception-coverage
This is a strange mandate. What does a box of condoms cost? I’m guessing $3 (haven’t bought ’em in a while!). Birth control pills are generics. Go to Wallmart and get ’em for $4.
This isn’t about contraception, because there is absolutely no reason for health insurance to pay for contraception. It is ridiculously affordable (which is why its use is so widespread).
I think this is a good piece, Doug. Your theory of continuity from taxes to direct payments is interesting.
I am trying to get my arms around a few not entirely consistent principles:
I think the law is generally pretty clear that I don’t have a right to prevent my tax monies from being used in ways that are contrary to my religious reliefs (to fund a war I oppose, capital punishment, torture, abortion, contraception, the teaching of intelligent design or evolution, etc…)
I generally agree that right of free exercise should not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).
I also think that the right of free exercise in the first amendment is more that just a right to worship. I think the ministerial exemption in the unanimous Supreme Court decision that you reference above acknowledges that much. This cuts into the applicability of neutral laws against religious organizations in certain contexts. Further, there are lines of cases relating to substantial burdens on free exercise and internal governance of churches (none of which I pretend to know much about).
Most religious organizations are tax-exempt non-profits. Some may be required to pay property and other local taxes. But, for the most part, their objections lie with using their monies to either directly provide coverage (large institutions are sometimes self-insured) or pay for that coverage via insurance premiums.
The question is whether the federal government should be able to require a religious institution to use its own funds to pay for something it finds morally objectionable. You rightly note (or rightly imply–or I infer), that HHS could have given a broader exemption. If they had designed the exemption to cover non-profit hospitals, charities, and universities run by religious groups, this issue could have been largely avoided. Further, if there was a single-payer system (whereby tax money funds health care), religious groups would likely have no standing to object.
I don’t know if there is or should be a meaningful legal distinction between a law that prescribes certain acts (consumption of drugs) and one that proscribes acts that are arguably expressive in nature (spending money on coverage for morally objectionable drugs or procedures). In this case, I like that distinction. I might not always.
Although I unambiguously think the HHS made the incorrect decision here, I think the larger principle is a difficult one.
There is nothing “strange” about a mandate to require contraceptives. 28 or so states have elected to mandate such coverage. The cost of birth control pills is much greater than your quess. $20 per month is at the low end, and if other products are indicated, they can reach $100 per month, per the Guttmacher Institute. Planned Parenthood puts the cost at $15-50 per month.
Additionally, the cost savings from contraceptive use is substantial. About one half of pregnancies in the US are unintended. The cost of a birth (prenatal, delivery, post natal, delivery) start and $7,000 for an uncomplicated vaginal delivery and go up to $16,00 for a complicated C-Section.
This mandate is absolutely about contraception, a benefit all members of Congress enjoy. How will it play? Voters that oppose the ACA will round up an additional suspect. Voters that support the ACA will likely not care. Among Catholic voters, a majority of Catholic women use birth control. The only group that strongly opposes the manadate are Fundamentalist Christians, and that is the Republican part base.
You’re right, I was incorrect. Walmart sells birth control pills for $9, not $4.
Even at $20, there is absolutely no reason to pay for birth control pills.
This is part of a larger issue. It isn’t insurance if it pays for trivial items that everybody can afford, it is a tax avoidance scheme (you pre-pay for your health care with pre-tax money).
Third party payment distorts the market for health care, making the demand curve nearly vertical (you demand unlimited services, because you are not paying for it directly, and you have pre-paid, so your incentives are to get as much care as possible).
As for the cost of pregnancy, that is an excellent argument for providing birth control in a health plan. But shouldn’t it be the entity that is paying for that health plan that makes that decision?
Target has $4 birth control pills.
Paying for low cost items through insurance is dollar trading or could be considered a tax avoidance scheme, but the same result could be achieved through an FSA account drug purchase.
The third-party payor effect does indeed distort the market for elective services. But the demand curve is nothing close to vertical for two reasons. Most people use no more than medically required. (It is not diminshing marginal benefit, it no marginal benefit. And in fact men underconsume neccessary services. Second, most healthcare purchase are delegated purchases, purchase recommended by a physician, PA, or Nurse Practicioner.
Notwithstanding those two effects, the economic literature shows that third party payment in and of itself drives health care inflation. This can be seen by contrast with regards to elective procedures that are generally not covered by insurance (Lasik, plastic surgery) where costs are actually decreasing, not increasing.
First, let me just get this off my chest. For all you fellas commenting, as a woman I want you to know that contraception is THE SINGLE MOST IMPORTANT HEALTHCARE COMPONENT THROUGHOUT A WOMANS LIFE. From our teens until menopause, the ability to control when and if we give birth determines to a great extent the quality of our lives. It is the one health issue we women are concerned with on a daily basis for decades. Birth control pills are not trivial items, as Buzz claims (laughable, as hormonal contraception has so profoundly altered society as well as the individual woman!), nor are they always “easily afforded”. It is an added economic burden for low-income women, young students, and financially struggling families who lack insurance coverage.
The birth control pills that are at or under $30 are older pills; those containing first generation, and some second generation, synthetic progestins. Bcp’s containing the newest, or third generation progestins are much more expensive without insurance coverage. Between $50 – $150 per month. The newer gen pills are much safer than their older counterparts, because the newer progestins are effective at much lower doses than the older progestins. These newer pills also contain lower doses of estrogen. The result is safer contraception with a much lower risk of stroke due to blood clots, lower rates of estrogen-fed cancer, and fewer side effects (nausea, vomiting, weight gain, breast pain, etc). Birth control pills also help treat the pain and heavy, prolonged bleeding from fibroids, ovarian cysts, and endometriosis. I take a third gen bcp continuously, to stop menstruation all together, as a treatment for my chronic migraine disease. Even with insurance, my co-pay is $30 a month. These pills are the only thing that controls the menstrual migraine attacks that would leave me bedridden and unable to function for 5-7 days, every single month, for 13 years.
Religiously affiliated schools, hospitals, etc receive special tax breaks, as well as funds via the federal government’s faith-based initiatives program. I am an atheist who believes that organized religion is a dangerous and archaic remnant of our less-evolved ancestors. However, though it is counter to my beliefs, my tax money goes to these religious programs. Why should they be eligible for tax payer money while denying tax paying women essential healthcare? The churches of these groups are exempt from the mandate. They do not have to cover contraception. Their schools, hospitals and other groups that employ people who may not belong to their church or religion are what is covered by the mandate.
Freedom of religion cuts both ways. The church has a right to refuse to cover that which is counter to it’s beliefs. The employee of a religiously affiliated business has a right not to have her employer’s religion imposed upon her.
Lets all get 100% government healthcare (doctors, nurses, admin all US Gov employees, hospitals physically owned by US Gov) and let the chips fall where they may. They entire system will eventually collapse, as in order to control cost, the US Gov Health Care Czar will have to slash wages, which will really tick off the nurses, doctors, and other healthcare providers. There will be a race to the bottom, only do those jobs that maximize pay combined with work perform and knowledge needed to do the job. Kiss all those specialist positions good-bye. Why go to med school and become a government employee making only 1/2 to 3/4 of historic wages when one clearly can go to law school and join the every growing list of attorneys who can sue, sue, sue under medical malpractice. And once the government takes over, that pot of money will be huge!!
Under the current system, the Republican bumper sticker is “Don’t get sick.” Under Democrat National Healthcare, it will read “Don’t get too sick.” Either way, the system collapses. Folks who make around $25-$30K/year think they will see huge raises once their employer doesn’t have to pay healthcare. Most also don’t seem to understand that whatever they are paying now, could easily just change from a health plan deduction to “US GOV Medical tax” deduction on their paycheck. Plus, employers are likely going to be targeted to help fund this new bloated bureaucracy, so anyone thinking companies will have a massive new slush fund of free money they can dole out as raises is nuts. The government is going to want that money in an effort to keep the status quo system going. The last thing the US Gov Health Care system can do is afford to tick off nurses, doctors, and admins by slashing salaries and benefits. They will try and go for some ridiculous “public-private” partnership, where admins at hospitals can still make three times what the President makes, even though the source of most or all of their income will be tax dollars.
I found a most interesting article on Kaiser Health News, a daily news service. And I saw some other articles discussing the same point.
Employers have been required to provide contraceptives through their health plans since 2000. In December of that year, the EEOC ruled that employer health plans must provide contraceptives under the 1978 Pregnancy Discrimination Act. The only thing that the ACA provides is that the contraceptives must be provided without co-pays or other cost-sharing mechanisms.
http://www.eeoc.gov/policy/docs/decision-contraception.html
(It is possible that if an employer provides no prescription coverage of any kind, it may not be discriminating under the PDA. But I will let the argument lie.)
Here’s how the EEOC put it at the time: “The Commission concludes that Respondents’ exclusion of prescription contraceptives violates Title VII, as amended by the Pregnancy Discrimination Act, whether the contraceptives are used for birth control or for other medical purposes.”
This EEOC pronouncement has not been challenged in Federal Court. However, two state laws requiring contraceptive coverate have been upheld in law suits brought by religous employers. The arguments rejected in those cases were similar to the claims made by the Catholic Bishops, certain religous groups, and assorted others. The definitions of a religous employer in those cases is similar to the ACA defintion, as the ACA modeled the religous employer language after the state definitions.
It appears that the ACA has ignited a debate that was made moot 12 years ago.
I am curious about one thing:
When Right-To-Work was the subject matter, a popular Democrat refrain was “If you don’t like being forced to join a union, don’t work at the employer that has one.” Yet I have not noted Democrats supporting the same argument when it comes to health care. I would expect to see something like: “If you don’t like the health care provided by your religious employer, don’t work at the religious employer.”
As a coincidence, both freedoms are covered by the same First Amendment (freedom of religion and freedom of association). I just find that fact to be of note.
I can alleviate your curiosity. “Go work somewhere else” was just throwing in right-to-work supporters faces the fact that purporting to be concerned about worker’s rights was an abrupt change in position. Traditionally, “go work somewhere else,” had been the response to any worker’s complaint that the worker did not like the employer’s condition of employment (e.g. allowing smoking in the work place.)
Ahh, the whole “we gave a hypocritcal argument because you give a hypocritical argument” defense. Brilliant!
On another note, I am not sure there is as much of a correlation between being for RTW and being against a smoking ban as you suggest, but ok.
Nice comments from MEN who scoff at the need for birth control and the fairy-tale land of $4 pills. No way pills are $4, ANYWHERE, without insurance, do you guys actually go to the store and get them yourselves? I’ve been on BC for decades, both WITH and WITHOUT insurance, and it was a significant cost either way, but certainly better with insurance. Even Planned Parenthood charges about $20 a month.
The thing that stands out here is the even Catholic groups support the new proposal by Obama. And birth control coverage has been required of employers for years. Why is this suddenly a huge issue? Obama’s new proposal is a win-win for everyone. The religious right can stop whining now, right?
Melissa, check out Target’s website for generic drugs, all of which are $4. There are a dozen oral contraceptives on there.
The Catholic Bishops and the Republican primary candidates still oppose the Obama administration’s compromise on the requirement of contraceptive coverage. All this notwithstanding that a majority of Americans and Catholic Americans support the requirement. It is hugely ironic to me that 50 years ago JFK had to go public and tell the nation that his Catholicism was his private faith and he would not take his marching orders from the Catholic Church. Now, the Bishops and Santorum want the nation to take its decisions on healthcare policy from a an orgainzation run by celibate old men.
More ironic is the Catholic Church does not mind looking the other way when its principles conflict with a revenue generating opportunity. In the late 1990s I represented a large Catholic healthcare payor organization develop a Medicare + Choice HMO plan that would would increase its managed care plan sales. Medicare + Choice was the then current name of the program. (Nothing wrong with making money legitmately. I am a capitalist with a background in healthcare economics, finance and reimbursement.)
Medicare is primarily a health plan for the over 65 bunch. But Medicare also covers SSI disabled beneficiaries, some of which are women of child-bearing age. The Medicare covered benefits package includes some reproductive services that the Catholic Church opposes. This issue required me to become very familiar with the Catholic Healthcare Directives.
Being the pragmatic healthcare lawyer that I am, and not giving a rat’s nipple about the Church’s directives from a moral perspective, I recommended, in a $200 memo, that the plan just “carve out” the benefit (much like the Obama plan “carves out” the contraceptive coverage) and refer the plan members out of the Catholic healthcare network to other providers willing to provide the services.
The plan consulted with several Catholic healthcare ethicists, charging tens of thousands of dollars, who concluded it was consitent with the Catholic directives to carve out the services and refer them outside the network. Viola, no problem when its money in the Catholic healthcare network’s pocket.