Tag: HHS mandate

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Hobby Lobby, Part 1: It’s not that narrow

Jen R

A lot of advocates for women’s health and for workers were pretty upset after Monday’s Burwell v. Hobby Lobby decision. The Lannisters even sent their regards. So of course, the Very Serious People arrived on the scene to tell us that it’s really no big deal and we shouldn’t get so worked up over it.

I don’t think so. Let’s look at some of the reasons people are saying that the holding was narrow and there probably won’t be any serious practical effects.

Claim: The ruling only applies to closely-held corporations.

True, but that doesn’t make it narrow. Over 90% of American companies are “closely-held corporations.” Those companies employ over 50% of American private sector workers. It’s true that most of them are unlikely to refuse to offer insurance that covers contraception (known hereafter as “standard insurance,” because by law that’s what it is), but that doesn’t mean the scope of the decision itself isn’t broad.

Claim: The ruling won’t have much effect because the affected employees will still get contraception coverage.

Well, they might. The HHS has created a system to accommodate religious non-profits who don’t want to offer standard insurance, and the Court said that for-profit corporations could be offered the same accommodation. It hasn’t yet been established that HHS has the legal authority to extend the compromise to for-profit corporations, though that does seem likely to happen. But there’s another problem. In Little Sisters of the Poor v. Burwell (formerly Sebelius), which is currently making its way through the Federal court system, a religious order is claiming the accommodation itself violates their rights because signing a form certifying that they won’t provide standard insurance means they’re directing the government to provide contraception coverage in their stead, and therefore cooperating with “evil.” It’s not impossible that the Court might say now that the government can provide contraception for Hobby Lobby employees, only to strike down the system they’re using to provide it later.

Claim: Hobby Lobby offers insurance that covers contraception; they were only asking not to cover “abortifacients.”

This is true in the case of Hobby Lobby itself. However, the decision applies to insurance coverage of all contraception. Basically, the Court used the concern over so-called “abortifacients” as cover to issue a broader ruling that will allow for-profit companies to deny all contraception coverage to their employees and their dependents.

In any event, the claim that the four methods in question are in fact abortifacient is highly contestable. I find it incredibly troubling that the Court felt no need to address the factual content of that claim.

Claim: The ruling only applies to contraception.

The majority said that people with religious opposition to vaccines, mental health screenings, or other services often covered under standard insurance might still have to cover them. At first, this seems to make the ruling more palatable; at least it affects fewer people and services than it otherwise might. But in fact, this is a problem precisely because the Court is singling out contraception as somehow unlike other medical services.

In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them. [page 46 of the majority opinion]

I’m not sure how the least restrictive means test would ever have a different result; after all, the government theoretically could step in and set up a program to cover any specific type of medical care. I think this comes down to “supported by different interests.”

Contraception is covered as part of standard insurance because the ability to plan and space pregnancies is good for women’s and children’s health. If the majority genuinely found that interest compelling, it would make no sense to argue that other coverage requirements might pass muster due to serving different (super-duper compelling?) interests. I don’t think they did, lip service to the contrary notwithstanding; there was not one mention in the opinion of the health benefits of family planning. It’s hard not to wonder whether the majority simply don’t think of contraception as “real medicine” like vaccines.

If HHS extends the religious nonprofit accommodation to cover closely-held corporations and if the court doesn’t strike down the accommodation, it may be that the practical effect of the decision is small. That’s the best-case scenario, and it’s certainly possible. No, SCOTUS didn’t ban birth control, and it’s not The Handmaid’s Tale. But it’s still a big deal.

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I’ll have my OB-GYN start a tab. Er, wait.

Jen R

Imagine that you worked for somebody whose religion forbids drinking alcohol. Now, that doesn’t mean you couldn’t get a beer. The way it would work is that your boss would tell the bank where your checks are deposited that she’s anti-beer. You’d get your salary minus the amount you spend on beer, and then when you buy beer, you’d have to tell the store or bar to bill your bank. Then the bank would keep track of how much they’d spent on paying for your beer, and submit that information to the government to be reimbursed.

Imagine that around half the country supported this system — or thought even this Rube Goldberg arrangement wasn’t good enough, and still amounted to your employer being forced to buy you beer — and said if you didn’t want your boss deciding how you could spend your pay, you should just find a different job. You know, in an economy where unemployment has been above 7.5% for almost five years.

Sound reasonable? No? Well, that’s basically the situation that now exists with another form of employee compensation: the employee’s health insurance policy.

If it would be ridiculous for beer, why is it OK for family planning?

[I’d bookmarked the HHS announcement but hadn’t started drafting this post yet when two stories came out about workers who are forced to get their pay in the form of prepaid debit cards and get screwed by the cards’ high fees. A friend of mine pointed out that soon, it could become technologically feasible for companies to pay their employees with debit cards that can’t be used to buy certain things. And won’t that be a paradise of religious freedom?]

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In the news: family planning

Jen R

Yesterday, the New Evangelical Partnership held an event at the National Press Club to unveil a statement called “A Call to Christian Common Ground on Family Planning, and Maternal, and Children’s Health.”

The statement makes three main points:

  1. Family planning strengthens families and creates more stable and healthy communities worldwide.
  2. Family planning protects the health of women and children.
  3. Family planning reduces abortion.

We agree wholeheartedly, of course, and are pleased to have the New Evangelical Partnership as part of the movement for family planning freedom.

You can watch the whole event on YouTube. I recommend at least watching Rev. Jennifer Crumpton’s presentation of the NEP statement, starting at about 8:15 in, Dr. Mark Hathaway’s talk at 19:00 about the medical benefits of family planning for women and children, and Katherine Marshall’s talk at 28:10 about the international context of family planning.

Speakers at the NEP event referred more than once to a study recently conducted by Washington University in St. Louis. The project provided women and teens at high risk of unintended pregnancy with the contraceptive method of their own choice at no cost. The results were dramatic. The abortion rate fell to 6 per 1,000 women, compared with a national average of 20 per 1,000 women. The teen birth rate from to 6.3 per 1,000, compared with 34.1 per 1,000 nationwide.

Imagine the impact of cutting the abortion rate in the U.S. by almost two thirds.

As the Agence France write-up of the study noted: “If the same results were replicated across the United States, free birth control could prevent 1,060,370 unplanned pregnancies and 873,250 abortions a year.”

Yes, that’s a big “if.” [Edited to add: as the researchers pointed out, the sample of women who participated in this study is not generalizable to the total population of women of reproductive age in the United States. That said, they likely bear a great deal of similarity to the population of women at the highest risk for unintended pregnancy and abortion.] And of course, there are important caveats. Women’s consent must be free and fully informed. Women must never be coerced into using long-acting contraception because other people think it would be better for them not to reproduce. It must always, always be the woman’s choice to use contraception. In addition, protection against HIV or other STDs is vital, and the forms of contraception chosen by most women in the study did not provide that protection.

But imagine it. Imagine 873,250 fewer unborn human beings destroyed every year. Imagine 873,250 fewer women going through abortions. Imagine 1,060,370 fewer women having to experience unplanned pregnancy, and instead being able to bear children at a time when their age, health, and life situation are better suited for motherhood — or being free to choose a different life path than motherhood.

Earlier this month, a Republican-appointed federal judge in the United States District Court for the Eastern District of Missouri rejected a lawsuit brought against the U.S. Department of Health and Human Services by an employer in a secular industry (mining, metals, & ceramics) who, due to his own religious beliefs, doesn’t want to provide his employees with insurance that covers contraception.

Judge Carol Jackson noted that employers already pay their employees a form of compensation that could be used to purchase contraception: their salaries. This is an argument I’ve made in the past. The full ruling is online here.

The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.

RFRA is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own…

Just as in Mead, plaintiffs must contribute to a health care plan which does not align with their religious beliefs. In this case, however, the burden on plaintiffs is even more remote; the health care plan will offend plaintiffs’ religious beliefs only if an OIH employee (or covered family member) makes an independent decision to use the plan to cover counseling related to or the purchase of contraceptives. Already, OIH and Frank O’Brien pay salaries to their employees—money the employees may use to purchase contraceptives or to contribute to a religious organization. [emphasis added] By comparison,the contribution to a health care plan has no more than a de minimus impact on the plaintiff’s religious beliefs than paying salaries and other benefits to employees.

And once again, despite the claims in this and similar lawsuits that the HHS mandate forces them to cover abortifacients, the belief that emergency contraception is abortifacient has not been borne out by the evidence. I’m going to keep repeating that until new evidence comes to light or people stop making this claim, so get used to it.

Blog Posts, Past Actions

In Defense of Life, We Support the Coalition to Protect Women’s Health Care

Marysia

All Our Lives, a pro *every* life nonprofit, does *not* stand with the anti-contraception Stand Up for Religious Freedom.

We support religious freedom, but that does not include employers' restriction of workers' family planning freedom. Instead we support and applaud the Coalition to Protect Women's Health Care in its defense of contraceptive access.

Family planning freedom is a human right in its own right, and indispensable to reducing unintended pregnancies and abortions.

All people, whether prolife or prochoice on abortion, should join together in the defense of family planning freedom, so that it becomes a reality for all women, especially women whose exercise of it is hindered by discrimination on the basis of gender, religion, socioeconomic class, race/ethnicity, disability, national origin, and/or sexual orientation.

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About That All-Male Birth Control Panel….

Marysia

I love my country, the United States. And that’s why I am so embarassed about the current cavalcade of birth control follies now overtaking our public life.

We have so many material resources, why can’t we share them to help all who need help covering the full range of family planning choices, without all this uproar? Poor Americans, immigrants, people of color, women, people with disabilities…why why why are these the groups that always get lost in the shuffle?

Exhibit A of said cavalcade: The all male panel that was convened before Congress to explain why the recent Department of Health and Human Services ruling on family planning coverage intrudes upon religious freedom.

When pressed, apparently, some of the panel members conceded that maybe contraception was OK in cases of “medical necessity.”

In an animated conversation with people I know, I submitted that this concession might stem from a belief that women with disabilities/health impairments have no business reproducing. Someone said that I was prejudicial, leaping to conclusions.

So I read through each of the panelists’ testimonies. If anyone can provide substantive evidence that any of these men have good disability and/or women’s rights records, then pleasantly surprise me, would you please?

Reading the testimonies just made me even more skeptical that any of them get the reproductive rights of women with disabilities–let alone *all* women’s family planning rights. Below are my notes on each testimony. If you want to read the testimonies yourself, please go here.

William Lori, US Conference of Catholic Bishops: Compares the proposed contraceptive coverage regulations to the government forcing Orthodox Jewish delis to serve pork, when that pork eaters can easily, cheaply, and freely get their chosen meat elsewhere.

This analogy does not hold (and it offends me as someone whose vision of reverence for life encompasses being a vegetarian, and an anti-anti-Semite). Pork is death-dealing, first of all to pigs, and second of all to humans who develop serious health problems from eating it. Access to free/affordable voluntary contraception, on the other hand, is often life- and health-giving for women, especially women with disabilities.

The analogy also suggests that contraception is somehow an optional luxury, one already easily, freely, cheaply available through many other venues. Yet the reality is that family planning access is far from a given for millions of US women, including and especially women with disabilities.

Women with disabilities are far more likely than nondisabled to live in poverty, rely on government benefit programs, be unemployed or underemployed, and thus to have constricted access, if any, to health care of all kinds, including voluntary family planning services and supplies. Any HHS ruling that expands voluntary family planning access, whether through government programs, private health plans, or some combination of the two, thus promotes the interests and needs of women with disabilities. Does Lori know this?

 

Matthew C. Harrison, President, Lutheran Church-Missouri Synod: “We object to the use of drugs and procedures used to take the lives of unborn children. We oppose this mandate since it requires religious organizations to pay for and otherwise facilitate the use of such drugs by their employees.”

As All Our Lives asserts every day, just about, according to the best, most current scientific evidence, IUDs and hormonal birth control methods such as the pill and Plan B emergency contraception work *before* conception and not at any point after. Thus the contraceptive coverage ruling is in fact solely about pregnancy *prevention*, by *anyone’s* definition of when life or pregnancy begins.

If Harrison believes this misinformation about such a critical health issue impacting so many women, with or without disabilities: then why should I be optimistic that he is amply informed about, let alone eager to promote and defend the family planning concerns of women with disabilities, a frequently overlooked and neglected minority population?

 

C. Ben Mitchell, Union University: “I am here to decry the contraception, abortifacient, and sterilization mandate issued by the Department of Health and Human Services on January 20, 2012…” , See my objections to Harrison’s testimony.

 

Meir Soloveichick, Yeshiva University: “The administration denies people of faith the ability to define their religious activity.” This definition of “people of faith” does not include or side with disabled women who make prayerful, conscientious, lifegiving, and lifesaving decisions about which family planning method(s) to use and when and whether to pursue conception.

 

Craig Mitchell, Southwestern Baptist Theological Seminary: “This rule…takes away the freedom of the citizens while emboldening the federal government to do whatever it wants.”

Whoa….Just about every discriminated-against group in the US has heard such an argument leveled against its own struggle for justice.

Mitchell’s definition here of “citizens” who are deprived of freedom sides with powerful religious institutions whose policy on birth control, especially when intruded into the public sphere, infringes upon the freedoms of many women with disabilities (not to mention women in general, but let’s stay focused on this doubly discriminated against minority for the time being.)

In effect it forces a “choice” between lifelong celibacy and a single method of family planning, natural family planning that may be right for some women. But for many women with disabilities, NFP is quite ineffective and illfitting, even as pregnancy may be quite risky for them, and they wish *themselves* to conceive sparingly, or not at all.

Mitchell’s notion here of “citizens” deprived of their freedom in regard to family planning does not appear to recognize women with disabilities and their children’s and their own rights to health and life.

 

I treasure religious freedom, especially as someone affiliated with a distinctly minority, other than Christian faith. Some of my ancestors were forcibly deprived of their religious freedom. Never again! But these testimonies…so awry…so unaware, it seems, of who they are excluding, and why, and how. In the name of prolife, even though their unwillingness to meet the administration halfway could end up costing lives, unborn, already born.

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On the contraception mandate

Jen R

I should point out before I begin that in this post, I am speaking for myself only. The All Our Lives board is not unanimous in the details of our opinions on requiring religious employers to provide insurance that covers contraception, though we are united in our belief that widespread access to contraception is vital.

I have a problem with the whole way this whole issue has been framed as “making churches pay for something they find morally objectionable.” Health insurance that someone earns as part of their employment compensation package is theirs, not the employer’s. If an institution’s religious freedom does not extend to allowing them to tell the employee that she can’t use her salary to pay for contraception, why should it extend to telling the employee that she can’t use her insurance benefit to pay for contraception? Yes, the money to pay the premium is coming from the employer, but so is the money to pay her salary. As far as I can tell, the difference is that religious institutions have been able to restrict the way that employees use their insurance benefits in a way that they have not been able to restrict the way that employees use their salaries, but the ability to do something does not make it a right. If there were some kind of special money that could be used to buy anything except contraception, would it be a violation of religious institutions’ First Amendment rights to require all employers to pay in standard money?

I’m an atheist. I rely on the separation of church and state to protect my freedom. Because of that, I’m leery of anything that even remotely smacks of government interference in religion or religious interference in government. That’s why I can appreciate the impulse behind the Adminstration’s accomodation allowing religious institutions to offer restricted insurance to their employees while still requiring the insurers to provide contraception coverage to those employees. I won’t claim to respect the belief that contraception is intrinsically evil. I think it causes great harm and is based on a number of false premises. But I do respect people’s right, as much as is possible in a pluralistic society, not to cooperate with something they think is evil. What happens, though, if Jehovah’s Witness employers decide that their employee’s insurance plans shouldn’t cover blood transfusions? What if Scientologist employers decide that their employees shouldn’t be covered for psychiatric treatment? At what point do we decide that a person’s right to practice their religion is interfering with another person’s right to live their life without having to submit to the rules of that religion? The degree of the employers’ “cooperation with evil” in these cases is remote — paying a benefit which the employee decides to use for a purpose condemned by the employer’s religion — while the impact on the employee who is restricted in their use of their own benefit is direct. The same is true of insurance coverage of contraception.

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Vital services for women to be available without co-pay under Affordable Care Act

Jen R

The U.S. Department of Health and Human Services has accepted the Institute of Medicine’s recommendations about women’s health care services that should be provided by all insurers without co-payment under the Affordable Care Act. Among these services are HIV screening and counseling, domestic violence screening and counseling, support for breastfeeding, and contraception. These recommendations will be in effect for insurance policies with plan years beginning on or after August 1, 2012. Religious organizations which are opposed to contraception may opt out of having that coverage provided by their insurance.

All Our Lives applauds HHS’s acceptance of the recommendations. Having these vital services available without a co-payment will help more women and children live healthy lives as well as making it easier for women to avoid unintended pregnancy and abortion.