So we bloggers at the Patheos Catholic channel (and elsewhere) have pretty much exhausted ourselves with respect to the Obama administration\u2019s (non?-) \u201caccommodation\u201d for the Little Sisters\u2019 belief that providing contraception for their employees is a violation of their First Amendment right to free exercise of religion.<\/p>\n
See here, for example, at Public Catholic<\/a>, which also provides a link to the court decision<\/a>.<\/p>\n But it\u2019s not a simple situation, so I spent some time looking at the court decision, the regulations, and the statistics. \u00a0Hence, the \u201cgeeking out.\u201d<\/p>\n (And, by the way, here are the ground rules for the comments: \u00a0yes, many of you likely think that the Sisters and other objectors don\u2019t have any reasonable grounds for their objection. \u00a0But that\u2019s not a particularly productive discussion. \u00a0Please take that as a given, or try to think of an analogous situation that works better for you \u2014 government-mandated coverage of gay conversion therapy, for instance, and go with that.)<\/p>\n The background and the decision<\/strong>:<\/p>\n The administration\u2019s, and the ACA\u2019s approach, is that employers should be the default provider of healthcare in America. \u00a0Now, I don\u2019t like that, and I think as long as that\u2019s the case, we won\u2019t be able to solve the problems with high healthcare costs. \u00a0But that\u2019s what the ACA established.<\/p>\n 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 \u201csingle-payer\u201d system, they declared that health insurance providers should be the source of this benefit. \u00a0In that sense, it\u2019s not about a \u201cfree\u201d benefit so much as requiring that chip in on a prepaid basis.<\/p>\n (* 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.)<\/p>\n Now, the Little Sisters of the Poor and similar organizations have been granted an accomodation. \u00a0It works like this: \u00a0if you provide health coverage via insurance, you\u2019re required to notify your insurer, who then provides the contraceptive or other coverage on their own dime. \u00a0If you are self-insured, then the third-party administrator provides the coverage and seeks reimbursement from the feds, through \u201can adjustment to the Federally-facilitated Exchange user fee\u201d (per the Federal Register<\/a>; search for the quoted text or \u201cCFR 156.50\u201d to find the particulars in this document).<\/p>\n 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\u2019 health insurance.<\/p>\n The ruling determines that this is not an infringement on their free exercise of religion because the requirement is a \u201cde minimis<\/em> administrative task\u201d only, and that \u201csuch an Now, there are two things that are striking here:<\/p>\n the first is this: \u00a0it\u2019s really their TPA,\u00a0Christian 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.<\/span><\/p>\n And, second, there is an alternate method of providing contraceptive coverage that would have been a less-religious-freedom-burdening alternative: \u00a0the 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. \u00a0For IUDs and the like, their providers would be the ones to file for reimbursement; for contraceptive pills, I suppose it\u2019d have to be a matter of the pharmacy, upon seeing that there\u2019s no contraceptive coverage coded in the system, filing for benefits.<\/p>\n Is this unreasonably\u00a0cumbersome? \u00a0Was 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\u2019t but never had anyone inform her of alternatives?<\/p>\n The rationale for the mandate:<\/strong><\/p>\n Way back when, I looked at the justification for including contraception<\/a>\u00a0among the mandated \u201cpreventive benefits\u201d in the first place. \u00a0The goal was not so much to get women to use contraception as to move women towards the ultra-highly-effective methods, that is, the \u201cLARCs\u201d \u2014 the IUD and implants. \u00a0And the rationale? \u00a0Since they couldn\u2019t say \u201cwe want to reduce the number of births\u201d 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. \u00a0Now, the studies that they cited didn\u2019t have those crucial statements that they\u2019d 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.<\/p>\n I looked a bit more (and was sent via facebook) at some of the studies:<\/p>\n Here is an Issue Brief claiming to document \u201cThe Cost of Covering Contraceptives through Health Insurance<\/a>.\u201d \u00a0One of the key pieces of evidence here is that<\/p>\n 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.<\/p><\/blockquote>\n However, the footnote for this statement is a\u00a0Fact Sheet<\/a>\u00a0whose source for the above-mentioned claim is a\u00a0\u201cLetter from Janice R. Lachance, Dir., U.S. Office of Pers. Mgmt. (Jan. 16,\u00a02001) (on file with NWLC).\u201d \u00a0In other words, the ultimate evidence is not publicly available.<\/p>\n Here is a report produced by the State of Hawaii<\/a> subsequent to their own contraceptive mandate: \u00a0the issue brief says this report states that costs were not increased, but the report itself says that costs were minimal, not non-existent.<\/p>\n Here is a set of recommendations<\/a> by the National Business Group on Health, which includes estimates on the cost of providing contraception.<\/p>\n And here\u2019s a link from The Incidental Economist<\/a> which lists several dozen sources and studies<\/a>.<\/p>\n There are two rather different questions:<\/p>\n
\narrangement is among the common and permissible methods of religious accommodation\u00a0in a pluralist society\u201d (p. 32 \u2013 33).<\/p>\n