The Supreme Court requested the Zubrick attorneys to file a supplemental brief to explain how employees of religiously affiliated groups could receive no cost sharing contraceptive coverage without the religiously affiliated do jack shit. The goal is to see if their precious fee-fees won’t be offended while offering their female employees contraceptive coverage. The brief is here and it shows an amazing lack of understanding of insurance and Congressional intent in the ACA design.
There are many ways in which the employees of a petitioner with an insured plan could receive cost-free contraceptive coverage through the same insurance company that would not require further involvement by the petitioner, including the way described in the Court’s order. And each one of those ways is a less restrictive alternative that dooms the government’s ongoing effort to use the threat of massive penalties to compel petitioners to forsake their sincerely held religious beliefs. Moreover, so long as the coverage provided through these alternatives is truly independent of petitioners and their plans—i.e., provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication—petitioners’ RFRA objections would be fully addressed….
If commercial insurance companies were to offer truly separate contraceptive only policies along the lines envisioned in this Court’s order, then the employees of petitioners who selfinsure or use self-insured church plans could enroll in those separate contraceptive-only insurance policies as well. Those policies would obviously be separate from the coverage provided by the self-insured employers or the church plans, and petitioners’ employees would be free to enroll in those policies if they choose. Accordingly, among the many less restrictive alternatives available to the government is to require or incentivize commercial insurance companies to make separate contraceptive coverage plans (of the kind contemplated by the Court’s order for petitioners with insured plans) available to the employees of petitioners that self-insure or use selfinsured church plans, without requiring petitioners to facilitate that process or threatening them with ruinous fines unless they do so.
I’ll let the lawyers take a whack at the legal argumentation as I’ll take a whack at the mechanics.
Contraception as a cost center is overwhelmingly focused on females who have some idea if they will want to use contraception at some point during the policy’s active period. Men don’t have to pay for prescription contraception, and women over a certain age don’t either. Individuals whose partner(s) have had permanant sterilization or medical infertility don’t need contraception either. Contraception is a near perfect case example of an adverse selection problem when it is unbundled from a larger medical insurance policy.
Requiring women who work for religious organizations to buy separate contraception only policies transforms part of their compensation (second question are the women getting a pay raise to make them whole?) from participation in an insurance scheme to participation in a discount buyer’s club. Almost everyone who would buy a separate policy with a twelve month coverage period for contraception only will use contraception. There is no risk pool. It is just a bulk buyers’ pool.
Congress in the ACA advanced a strong federal interest that there would be no gender discrimination in premiums offered to women. This was expressed as a significant interest for well over a generation in the group market and it is an expressed interest in PPACA for the individual market. Congress also has a strong interest in bending the cost curve. One of the major theories of change to bend the cost curve is to increase the use of evidence based preventative care. The means to increase birth control utilization is to reduce the cost of birth control. If all of a sudden secondary policies have to be created the monetary and the hassle/friction costs go up significantly for the people who would benefit the most from increased access to this form of preventative care.
update 1 This is the oh so onerous and oppressive form that must be filled out under the current accommodation for their fee-fees:
If you’ve never looked at the form the Little Sisters of the Poor say is oh so burdensome, you should. pic.twitter.com/VdNbTMOvX6
— Kaili Joy Gray (@KailiJoy) April 13, 2016
The goal is to see if their precious fee-fees won’t be offended while offering their female employees contraceptive coverage. The brief is here and it shows an amazing lack of understanding of insurance and Congressional intent in the ACA design.
The first sentence is a mistake. The goal is not to avoid offending the feelings of religiously motivated employers. The goal is to use an entirely feigned “offense to the religious feelings” of politically motivated employers to cripple one dimension of the ACA and put obstacles in the way of women seeking to control their own lives.
If this is understood, the second sentence is also off: the brief displays a solid grip on the mechanics of insurance and congressional intent, and it is attempting to prevent the justices from gaining that grip as well.
I find the notion that this Court apparently seriously considers the notion that the Little Sisters of the Poor filling out a form is a serious burden, while requiring a woman to travel hundreds of miles for an abortion is not to be seriously infuriating.
It still boggles my mind that we’re having to have this political fight in the second decade of the 21st century. But clearly the forces of regression, the urge to control women, and the moralistic gloss of slut-shaming are still very much with us. So fight we must.
Easy solution: Just mandate that an employer that doesn’t want to have the “blood” of paying for contraception on their hands simply offer 3x whatever (+ enough to cover the extra income taxes) they would normally pay for individual employee health insurance to their employees desiring contraceptive coverage to buy their own insurance on the exchanges.
If I have to subsidize their sanctimony with their tax exemptions, it’s certainly alright for religious organizations to subsidize sane humans for the right of those organizations to be sanctimonious twits.
@dp: Agreed.. checking a box on a form is a far lower burden than driving across the state for a legal medical procedure.
For years I was prescribed oral contraceptives not just for family planning but also because it was recommended as a treatment for a medical condition. It was never covered by my insurance so I paid a small fortune for my prescription every month. In 1986 it was $36 a month and it kept increasing in price over the years.
Not that women should have to justify using contraception for treatment of a non family planning condition, but it did piss me off that it wasn’t covered like a blood pressure medication would have been.
How long are we supposed to wait to have full autonomy over our own bodies? We are supposed to run our personal medical decisions past our employers?? Talk about tyranny.
I still don’t understand the moral reasoning that attaches opprobrium and responsibility to the employer under these circumstances. Isn’t it just as closely connected if the employer pays an employee wages that she then uses to buy contraception? Do religiously affiliated employers complain about that? It’s such a weird version of the one-drop rule. Like if one cent of employer money, or one second of employer bureaucratic energy, goes into a process that ultimately morphs into contraceptive services, it incriminates the employer. That’s supremely peculiar, isn’t it?
Can I also say that the Little Sisters of the Poor can kiss my ass with their objections about money going toward contraception when the real outrage is how much money enabled the sexual assault committed by Catholic priests against children.
I would like to see the Little Sisters of the Obtuse get their heads handed to them.
Will also be interested to see if their donations tank in the wake of this very bad action by them.
I wonder if all the backlash against the bathroom idiocy legislation in North Carolina (which also gutted $15 minimum wage in a locality or two; that gets lost in the shuffle) got the attention of the cons on the Supreme Court. Methinks it did.
Yes, it’s crazy, but it’s not a surprise. It was one of the costs of getting the ACA passed at all. Everyone knew these carve outs and exceptions would be difficult. But, if memory serves, getting the bill passed at all was a very heavy lift.
The thought that the Court doesn’t understand this…
I’m not buying it. They choose not.
How is this not the dreaded, Republic-destroying, liberal legislating from the bench?
Iowa Old Lady
@dp: Sing it. It makes my blood boil.
I find it fascinating that while they will go as far as the Supreme Coutr to oppose contraception they will not fill out a simple form to say they do.
J R in WV
My family doctor was solicited to donate money to local catholic charities. He converted to RC in order to marry the woman he loved, and so said, sure, but show me the financial books first. Turned out that 69% of income for catholic charities was from government payments.
If these bunco outfits are getting their money (ANY of their money) from the government, let’s assume they use some of that money to pay for their employees’ reproductive health care, why don’t we?
OR, another suggestion, let’s put the burden of reproductive health care on everyone, spread those costs out on every health insurance policy in the nation, and no one has to fill out a form saying they don’t want to pay for Mrs. Rodriguiz’s birth control.
Or, let’s just say that if filling that form out, one block – ONE BLOCK, the name of the organization, then date and sign. Well, then they get to start paying taxes on everything that Giant Evil Corp pays taxes on.
Their choice, play ball or pay up. I’m really not interested in assisting hate-filled organizations with a huge history of sexual predation with my tax dollars. And that’s what is happening here. You and I are paying for the LIttle Sisters of the Pederasts to run their scandal ridden organization. Which is so far against my morality and ethos I can’t even say.
How about next case of pederasty in an organization, the leadership of that org goes go jail and the org is disbanded? These people have no morality, they have a dictatorship that governs their actions, and that dictatorship dictates that they don’t participate in modern civilization. Kick them out of our civilization, or make them help pay for the one we’ve invented without their help. Grrrrrrrr.
J R in WV
Which is the higher burden, filing court cases with the Supremes, or filling out the simplest form in the history of insurance forms?
Which is the higher burden, filling out the world’s simplest insurance form, or hiding all the evidence in the world about sexual predation?
Which is more immoral, paying for someone else’s birth control, or hiding sexual predation?
I’m confused by these Little Sisters – they seem quite immoral already, and getting moreso by trying to screw their employees.
@J R in WV: If memory serves, the Little Sisters get at least 55% of their revenue from Medicaid reimbursements.
I agree with you about unspooling religious organizations from the govt teat. They want to accept government moolah, they provide their employees with health insurance as other non-religious groups receive. And comply with federal law. Or they cut the cord.
Not saying Catholic Charities does not do a lot of good. They do.
I think the Sisters were used as a cat’s paw by rightwingers. Although maybe they are that anti-contraceptive. (And how, after dealing with the poor, could one be for unbridled fertility?)
a hip hop artist from Idaho (fka Bella Q)
@amygdala: OT – do you have any interest in an offsite email discussion of general workforce issues and what kind of advocacy could be useful around the topic? The current state of my white matter requires more consideration and drafting than a blog provides, and that’s before you get to the part where that discussion might provoke howls of “boring“.
Richard, my sense is that I did not entirely answer a question you asked about citations. If that’s correct, please shoot me an email to tell me what I missed. Thanks as always for these informative posts.
Bingo. Since the employer-based insurance is merely a part of the employee’s compensation, they should have zero say in how the money is spent.
a hip hop artist from Idaho (fka Bella Q)
@dp: Infuriating understates by level of response to this by a couple of orders of magnitude.
a hip hop artist from Idaho (fka Bella Q)
Until Jesus tells them we can be trusted not to be sluts. Or until men are required to submit their personal medical decisions to employers for review. Whichever comes first. Unless … well, I shouldn’t suggest things I can’t in good conscience condone.
If they knew they could get away with docking employees’ pay for using contraception, they would.
I’m still not seeing the part where it is in any way reasonable for an employer to require that any employee, male or female, conform to the employer’s religious beliefs. Could an employer require that an employee not buy any health insurance and rely on faith healers?
@a hip hop artist from Idaho (fka Bella Q): Sure. I assume you’re talking medical work force issues?
It is my understanding that it is cheaper for an insurance company to furnish birth control than to cover unintended pregnancies. If this is the case then shouldn’t the Poor Sisters be paying more for their insurance policies?
@Bess: I realize that feels gratifying in that FU sort of way, but let’s remember that health insurance is a form of employee compensation. For the Sisters of Employee Punishing to pay more means their employees – who are surely already suffering enough with having to work for assholes – would receive less spending money.
No burden is too great for women seeking contraceptive services that it should be struck down. No burden is too slight for those seeking religious exemptions that it should be upheld. There, Justice Roberts and company, I just wrote your opinion for you. No need to dress it up in fancy First Amendment language.
@J R in WV:
The error that you and others are making here is failing to take adequate account of the “complicity” theory. You can mock it all you want, but don’t for a second doubt the sincerity of the Little Sisters’ belief that signing the form is a grave sin.
@Brachiator: Yes, if the employees are “ministerial in nature.” But then, it would have to be the kind of position where you require the applicant to be a member of the same church, which is clearly not the case of religious orders running hospitals.
@burnspbesq: Okay, as a Catholic who no longer attends church or contributes in any way shape or form to organizations like Little Sisters, let me spell it out for you: They. Are. Not. Sincere. They are opportunistic and motivated by money. I can’t prove what I said anymore than you can prove what you said. Their sincerity is beside the point, or ought to be. They receive a gazillion dollars in taxpayer financed health reimbursements and it is abominable that they should be able to ram their ideology up the vaginas of living and breathing women as if they were a law unto themselves. Fuck them.
@burnspbesq: The point is that their sincere beliefs are not what the law ought be made of. The sincerity has nothing to do with it.
ETA: +1 Barbara, didn’t need my redundant comment
I don’t mock it, but I don’t see that sincerity of belief allows anyone to impose their will on another in a secular society.
Religious institutions have a problem. But it is not my problem. Nor can it be made the problem of other citizens.
An organization run by a Protestant Church hires a Catholic, a Protestant and an atheist to . The Church must remain neutral in dealing with all three as employees, in offering them benefits, in evaluating their work, in promoting them. And in offering them insurance benefits. Otherwise the Church should not be in business.
I’m not a theologian, OK, but I don’t understand why “complicity” applies in this case but not in myriad other cases that no one ever challenges. No one says that being made to pay minimum wage is a burden because the employee might buy heroin with it, which is illegal, so the employer is abetting illegality, and they can’t have that on their conscience. Catholics are supposed to believe in complex logical reasoning. That’s why the term “jesuitical” was invented.
The Court asked how women could receive cost free contraceptive coverage, and counsel responded by suggesting they purchase separate coverage. Seems to me this ignores the whole “cost free” aspect of the question.
Raping children is a grave sin too. Are they doing anything to stop that very common sin in their church?
Capital punishment is a grave sin for Catholics, too, yet it is paid for by their state and federal taxes. Shouldn’t they be protesting that grave sin?
Their twisted ideas of what’s a grave sin worth running to the Supreme Court and which isn’t should lead them to a strictly religious life in which they don’t run any businesses where they demand an exception to discriminate against their employees so their conscience is clear of ONE of many governments and church sins they contribute to.
Richard, you will know better than I, but I can’t see insurance which covers only contraception as being less expensive than the individual involved buying the contraception themselves. Part of the reason for making contraception mandatory is the free-rider problem because contraception (and childbirth) is tagged as a “female” expense, although there is a man also benefiting from the medication/procedure.
A huge part of the problem is that contraception is expensive enough that paying for it out of pocket is a burden, but not expensive enough that once overhead is added, the cost would be that much less than what out of pocket would be. The other issue is that methods which are far less expensive over the long term, such as the IUD, cost far more up front, and incur another substantial cost when it is time to remove/replace the device.
@Feathers: That’s why it would not be insurance but a discount buying group. Insurers almost always manage to get better prices for things than individuals, so it would most likely be cheaper to do it through a bulk purchasing agent, which is what the insurer in this case would be.