So we bloggers at the Patheos Catholic channel (and elsewhere) have pretty much exhausted ourselves with respect to the Obama administration’s (non?-) “accommodation” for the Little Sisters’ belief that providing contraception for their employees is a violation of their First Amendment right to free exercise of religion.
See here, for example, at Public Catholic, which also provides a link to the court decision.
But it’s not a simple situation, so I spent some time looking at the court decision, the regulations, and the statistics. Hence, the “geeking out.”
(And, by the way, here are the ground rules for the comments: yes, many of you likely think that the Sisters and other objectors don’t have any reasonable grounds for their objection. But that’s not a particularly productive discussion. Please take that as a given, or try to think of an analogous situation that works better for you — government-mandated coverage of gay conversion therapy, for instance, and go with that.)
The background and the decision:
The administration’s, and the ACA’s approach, is that employers should be the default provider of healthcare in America. Now, I don’t like that, and I think as long as that’s the case, we won’t be able to solve the problems with high healthcare costs. But that’s what the ACA established.
At the same time, the government decided that every American woman* should have all FDA-approved forms of contraception available at no out-of-pocket cost, and, rather than establish some wholly separate “single-payer” system, they declared that health insurance providers should be the source of this benefit. In that sense, it’s not about a “free” benefit so much as requiring that chip in on a prepaid basis.
(* leading to the unfortunate situation that sterilization for women is covered, but not for men, even though the latter is less expensive and less invasive.)
Now, the Little Sisters of the Poor and similar organizations have been granted an accomodation. It works like this: if you provide health coverage via insurance, you’re required to notify your insurer, who then provides the contraceptive or other coverage on their own dime. If you are self-insured, then the third-party administrator provides the coverage and seeks reimbursement from the feds, through “an adjustment to the Federally-facilitated Exchange user fee” (per the Federal Register; search for the quoted text or “CFR 156.50” to find the particulars in this document).
What the Sisters objected to was the fact that (a) it was required that they file a form that served as an instruction to the TPA to provide the contraceptives and (b) the contraceptives would ultimately be provided through the healthcare plan, and would provide to their employees the experience of receiving their contraception through the Sisters’ health insurance.
The ruling determines that this is not an infringement on their free exercise of religion because the requirement is a “de minimis administrative task” only, and that “such an
arrangement is among the common and permissible methods of religious accommodation in a pluralist society” (p. 32 – 33).
Now, there are two things that are striking here:
the first is this: it’s really their TPA, Christian Brothers Services and Christian Brothers Employee Benefit Trust, as well as any other religious insurer or administrator, that needs an accommodation, because according to this scheme, they are required to provide contraception, with no workaround.
And, second, there is an alternate method of providing contraceptive coverage that would have been a less-religious-freedom-burdening alternative: the government could have permitted any objecting organization to opt out, and provided a mechanism for women affected by this objection to request coverage elsewhere, with government reimbursement in the same manner as for TPAs. For IUDs and the like, their providers would be the ones to file for reimbursement; for contraceptive pills, I suppose it’d have to be a matter of the pharmacy, upon seeing that there’s no contraceptive coverage coded in the system, filing for benefits.
Is this unreasonably cumbersome? Was it considered and rejected, for the very reason that the administration wanted women to perceive of their contraceptives as part of their health coverage, and not fall through the cracks if she learned it wasn’t but never had anyone inform her of alternatives?
The rationale for the mandate:
Way back when, I looked at the justification for including contraception among the mandated “preventive benefits” in the first place. The goal was not so much to get women to use contraception as to move women towards the ultra-highly-effective methods, that is, the “LARCs” — the IUD and implants. And the rationale? Since they couldn’t say “we want to reduce the number of births” in an absolute sense, their approach was to argue that unplanned pregnancies are disproportionately likely to result in premature or low birth weight babies (because the moms are less diligent about prenatal care, among other reasons) and/or are not spaced sufficiently to be healthy for the mother. Now, the studies that they cited didn’t have those crucial statements that they’d controlled for external factors, so it was not clear whether unplannedness itself produced these outcomes, or correlations between unplanned pregnancies and the expectant mothers being poorer or less educated.
I looked a bit more (and was sent via facebook) at some of the studies:
Here is an Issue Brief claiming to document “The Cost of Covering Contraceptives through Health Insurance.” One of the key pieces of evidence here is that
In 1999, Congress required the health plans in the Federal Employees Health Benefits (FEHB) program to cover the full range of FDA-approved contraceptive methods. The FEHB program is the largest employer-sponsored health benefits program in the United States, and at the time, it covered approximately 9 million Federal Employees, retirees and their family members and included approximately 300 health plans. The premiums for 1999 had already been set when the legislation passed, so the Office of Personnel Management (OPM), which administers the FEHB program, provided for a reconciliation process. However, there was no need to adjust premium levels because there was no cost increase as a result of providing coverage of contraceptive services.
However, the footnote for this statement is a Fact Sheet whose source for the above-mentioned claim is a “Letter from Janice R. Lachance, Dir., U.S. Office of Pers. Mgmt. (Jan. 16, 2001) (on file with NWLC).” In other words, the ultimate evidence is not publicly available.
Here is a report produced by the State of Hawaii subsequent to their own contraceptive mandate: the issue brief says this report states that costs were not increased, but the report itself says that costs were minimal, not non-existent.
Here is a set of recommendations by the National Business Group on Health, which includes estimates on the cost of providing contraception.
And here’s a link from The Incidental Economist which lists several dozen sources and studies.
There are two rather different questions:
1) Does no-out-of-pocket contraception availability improve mother-and-child health outcomes, based on the hypothesized “unplanned pregnancies being delayed until the pregnancy is planned”? None of the data the Incident Economist cites seem to try to split out this component, and, at least with respect to the general NOOP mandate implementation, it’s probably not possible to do so, since there were so many other aspects of the ACA that impacted prenatal care, so you couldn’t evaluate the NOOP mandate in isolation. It could be that being poor is what drives the poor outcomes, and that poor women are more likely to have these poor outcomes even if their pregnancies are deferred and planned. (Or are the poor to be dissuaded from ever having children?
2) Does NOOP contraception reduce, rather than delay, the number of births a woman has over her lifetime, and thus drop the overall fertility rate in the U.S.?
The studies supporting NOOP contraception all take that approach, and many of them, as described in The Incidental Economist’s summary, were basically mathematical models based on this very assumption.
And that is, in the end, somewhat unsettling.
Are we dependent on unplanned pregnancy to keep our birthrate at (near)-replacement levels in the U.S.?
And isn’t it a bit creepy to do the math that measures children in terms of how much their healthcare costs and tallies up the benefits of fewer of them?
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