• The contraception mandate decision

    The Gilardi v. HHS decision is out today (on scribd), blocking the PPACA contraception mandate for the plaintiffs. Two brothers own Freshway Foods and a related company that offer a self-insured health plan to their 400 employees. For non-grandfathered plans with an annual enrollment period starting on or after September 23, 2010, PPACA required zero deductibles and cost sharing for a package of preventative services. One component of that package includes FDA-approved contraception. The Gilardi brothers claimed this requirement violates the Religious Freedom Restoration Act (RFFA). A majority of the Court agreed, sending the case back to the District Court for a reconsideration of the injunction.

    This case raises an interesting point about pluralism in our society. When do we get to abstain from generally-applicable laws that violate our moral beliefs? Even more attenuated, when do we get to opt out because other people’s actions violate our beliefs? Can the Freshway companies decide to drop hospice care for their employees as violating Catholic beliefs? Could a Muslim employer prevent employees from bringing home the bacon with their paychecks? Could a Baptist employer fire employees for watching porn at home on HBO?

    Judge Brown wrote for a 3-judge panel on the DC Court of Appeals. It is a complex 71-page split decision, with the justices disagreeing on several issues. On one level, it is not entirely surprising, as the Court had previously granted a temporary injunction for the Gilardi brothers.

    The brothers, as Catholics, do not want to cover contraception, sterilization or abortion. The first question is whether the Freshway companies have free exercise rights. The majority looked to cases where religious corporations pursued free exercise rights as a community, and noted that Citizens United recognized corporate free speech, “separated only by a semicolon” from the religious clauses. But mere proximity was not enough to find that corporations can worship God:


    Nor did the Court permit the Freshway companies to exercise the religious rights of their owners, despite the moral implications of complicity.

    To this point, the US Government is winning this case handily (or 2-1, as Randolph would leave the corporate worship issue undecided at this point). Their luck turns in the next section, where the majority grants standing to the Gilardi brothers themselves, suing in a derivative capacity. I must confess that this is the portion of the opinion that I understand the least, even though I teach derivative actions. This is not the sort of “direct” injury that is commonly recognized as the counterpart to derivative actions. The dissenting opinion by Judge Edwards agrees in this particular result, but with substantially clearer analysis based on Article III. They would grant contraception mandate standing to any closely-held company with religious owners. On this result, all 3 Judges agree.

    According to the majority, the injury is owning a company that is forced to “fill the basket of goods and services that constitute a healthcare plan” with contraception and sterilization. The majority analogizes this to compulsory church taxes and forcing the Amish to send their children to secular schools.

    Given this framework, the majority then finds that the contraception mandate fails the strict scrutiny standard under RFRA. The employees don’t have a compelling interest in contraception (so says the majority) and the mandate is not the “least restrictive” means to achieve that objective. The various compromises by the Administration (grandfathered plans, small employers, religious employers) were cited as evidence that the government lacked a consistent approach to contraception. There is a lesson here.

    One bright point for the Administration:  the Court assumes that the contraception provisions are severable when it notes that “the comprehensive sweep of the Affordable Care Act will remain intact with or without the mandate.’

    The dissent by Judge Edwards is longer than the main opinion. Judge Edwards agrees that the Freshway companies lack standing and that the Gilardi brothers have standing under RFFA. Edwards allows their claim to be heard, but finds it “specious.”

    The Supreme Court has never applied the Free Exercise Clause to find a substantial burden on a plaintiff’s religious exercise where the plaintiff is not himself required to take or forgo action that violates his religious beliefs, but is merely required to take action that might enable other people to do things that are at odds with the plaintiff’s religious beliefs.

    Edward’s dissent focuses on the Supreme Court decisions that were not overthrown by RFFA, finding a more nuanced application of free exercise than the majority. The dissent also found that the contraception mandate did not substantially burden the brothers – they are not required to use contraception themselves, but only to provide insurance that might be used by others (employees and their dependents) for contraception. The government isn’t forcing the Amish to go to school. See my discussion on pluralism above.

    The case attracted an unusual number of amicus briefs: 9 groups opposed the ACA contraception rule and 7 supported it. As a side note, this is the court where Majority Leader Reed is threatening the nuclear option if Republicans continue to block the President’s nominations from proceeding to the floor.


    UPDATE:  correcting my Catholic mistake (see the comments)

    • Here’s a solution.

      My understanding is that providing contraception and sterilization (and even abortion) coverage _reduces_ the overall costs to the insurer.

      So insurers should be required to provide to companies higher cost policies that don’t cover those services, and be required to offer individuals who are covered by such policies the option to “purchase” riders that cover those services _at a negative price_, i.e., we give you a rebate if you accept this coverage.

      This makes everyone happy. The company gets to purchase policies that don’t cover those services, and the individual gets to take home a rebate for accepting said services.

      Everyone’s happy.

      • I’m always dubious of the claims that insurance costs less than covering contraception. The vast majority of sexually active adults avoid unplanned pregnancies fairly effectively regardless of whether it is covered under their insurance or not. So, one birth control prescription is not equal to one forgone pregnancy.

        You’d have to assume that enough pregnancies are caused by an inability to pay for contraception to cover the costs of all the people using it. But that’s a dubious proposition, the costs of a child are far higher to the parents than to the insurance company. I’d bet a year of daycare costs more than a tubal ligation, vasectomy, or a year’s prescription of BC pills.

        A pregnancy, on the other hand can only end in miscarriage, childbirth or abortion, and abortion is far cheaper than birth, making it cost-effective for insurance companies.

        • “I’m always dubious of the claims that insurance costs less than covering contraception.”

          So look it up. It took about seven seconds to find this.


          Bottom line for folks who don’t want to click:

          The actual cost is minimal, so it doesn’t take very many unintended pregnancies prevented to put you in the black. As far as insurers are concerned, it’s essentially a wash. If you add the time lost from work during pregnancy, contraception saves money.

      • That is similar to the solution the Administration offered to religious employers (like Catholic universities)

    • The contraceptive coverage issue IS NOT a matter of free exercise of religion. It is a matter of compensation.

      An employee receives salary or wages and benefits in exchange for their labor. This is their compensation for the work that they do for their employer. The compensation may be any combination of money, vacation days, sick days, health insurance premium support, 401k dollar matching, etc. It is the employee who freely chooses what to do with the fruits of THEIR labor, their compensation. They can choose a luxury car or a rattle trap, American made or foreign made. They can buy liquor. They can gamble where it’s legal. They can use their vacation to go to a nudist colony or make the haj. They can invest in solar energy or oil production. They can do all this without infringing on the religious convictions of their employer.

      And they can choose to use contraceptives or not. They can make this choice based on their health needs, their family situation, their doctor’s recommendation or THEIR RELIGIOUS BELIEFS.

      Their employer and his beliefs have absolutely nothing to do with it.
      If the employer was allowed to opt out of the contraceptive mandate, then the employee would be forced to use their salary or wages to buy contraceptives. As with health care premium support, the contraceptives have been obtained with the compensation that is the fruits of their labor.

      In which case, what has the employer gained? What is the difference? Either way the employer has paid the compensation with which the contraceptives are paid for, and the EMPLOYEE freely exercises their religion.

    • The courts should get a clue by four across the head. If corporations are people, then they should lose the advantages of corporations. If they want to be corporations, they don’t get the rights of people. It’s really pretty simple as a corporation is an artificial creation.

      In any case, why exactly does a corporation get to put its rights ahead of its employees? It’s called the free exercise of religion for a reason.

    • I’m a catholic deacon. Catholic teaching is not opposed to hospice care. You won’t find support anywhere in catholic teaching or beliefs for a catholic employer to refuse to pay for hospice care. In fact, hospice care is in complete accord with catholic teaching. You might be confusing this with another end-of-life issue: withdrawing food and water from a patient in order to hasten death which is not hospice care and is opposed to belief in the sanctity of human life.

      The holding in our faith of the sanctity of human life goes right to the core of who we are as human persons. Its not merely a matter of religious practice. I am not an expert in Muslim or Amish faith, but I don’t agree that those two example of plurality can compare merely because those other two examples don’t seem to be at the that same level of within their beliefs. I mean a law that forced Catholics to work on Sunday would be objectionable but not as deeply objectionable as a law that forces us to take food from a dying person. That distinction might not matter to you, but you won’t understand the catholic objection to the mandate if you equate it to any arbitrary religious practice.

      • No one is forcing a person to violate his/her beliefs. A corporation is a legal fiction that was created to (gasp!) shield stupid/unlucky business people from their mistakes. What a surprise. It is not real unlike a human being. A corporation has no feelings; it cannot be sad or happy or angry. It cannot even think. It is a piece of paper- literally and not figuratively. You create a corporation by filing paper in your state’s business section.

        Oh, and as a deacon, can you tell me when you observed a corporation in your pews on Sunday?

        Until SCOTUS gave a corporation free speech no one would have even entertained such a lunacy. And the SCOTUS decision is a lunacy. If the corporation’s founders want the freedom to practice their religion on behalf of the piece of paper, are they willing to be sued personally? Of course not. They hide behind the corporation on one hand as a shield and use it as a weapon in the other- how convenient.

        But that is the purpose of conservatism: to let the businesses rule all. Our corporate overlords have control of SCOTUS and know that in the end, they will win.

      • I was going to say something along these lines. I am not Catholic, but I have worked in a Catholic hospital system and am familiar in outline with some of the ethical issues.

        Catholic teaching allows individuals and their proxies to opt not to receive extraordinary measures to prolong life, or to (iirc) withdraw such measures after they are in progress. Catholics do believe that ordinary measures to prolong life should always be used. The line between ordinary and extraordinary can be fluid. Feeding tubes are one example that is usually considered an extraordinary measure when a patient is dying.

        Pope John Paul II did move the line in the stricter direction in 2005 or thereabouts. Catholic hospitals are no longer allowed to withdraw feeding tubes for people in persistent vegetative states. There are still exceptions, and families could certainly transfer a loved one to a non-Catholic hospital and withdraw a feeding tube. Also, this particular policy seems to center only on people in persistent vegetative states. However, there seems to be some lack of clarity on the Church teachings.

        For the record, I don’t agree with this particular stance, but it is definitely not a hardline stance against opting out of curative care and into palliative care.

        A brief on the issue from an external perspective is available here (seems accurate enough to me, but I am an outsider):

        And what I believe to be a Catholic bulletin is below:

      • Apologies on the specifics about hospice care, but the general point holds. If I’m employed by a corporation with a religious owner, I will now have to wonder which health benefits my owner considers to be wrongful will be withheld.

    • I suppose contraceptives are “preventative services” in that they prevent pregnancies but, except in rare cases, they are not therapeutic. Unlike, say, a bone marrow transplant for someone with leukemia. Is a bone marrow transplant, like birth control pills, an “essential health benefit” that insurance must cover? It’s highly relevant if you have leukemia since the cost can exceed $100,000, as compared to birth control pills, which cost about $70 per month. Unfortunately, we don’t know if a bone marrow transplant is an essential health benefit because the Obama administration chose not to adopt federal (uniform) standards for insurance, deferring to the states instead. That’s not quite right, the administration did adopt one federal (uniform) standard: birth control pills. I have yet to figure out a consistent theme in the administration’s implementation of ACA. Why would the administration pick a fight in the culture wars by designating birth control pills an essential health benefit while otherwise deciding not to adopt federal (uniform) standards, a decision that surprised most policy wonks. Was it a political decision (to avoid another battle regarding the “federal government takeover of health care”) or was it a practical decision (not having federal (uniform) standards means a proliferation of health plans, which mitigates the adverse selection death spiral risk). Ironically, the decision may backfire: the proliferation of health plans may result in consumer paralysis (which won’t be evident until the exchange is up and working). In most states, there are numerous plans within each category (bronze, silver, etc.), with small price differences but otherwise opaque differences. To determine the benefits of the plans, the consumer must go to the insurers’ web sites, and there the consumer will find, surprise, not much information – in most cases not even a list of participating physicians. Nevertheless, the consumer can select any of the plans with confidence that the cost of birth control pills will be covered.

      • Should a Jehovah’s Witness employer be allowed to provide health insurance to employes which specifically prohibit blood and bone marrow transplants? Should a Scientologist prohibit access to mental health care? Can a Muslim employer omit mental health care because he believes that no one who truly follows Allah can be depressed?

      • Congress decided that every non-grandfathered health plan would cover a suite of preventative services including those that prevent conception. The Administration has been more flexible than the PPACA required, but generally seems to get little credit for those concessions.

      • Actually all males should be outraged about the contraceptive mandate. Your health insurance premiums have been adjusted and increased for something you don’t even need. I understand vasectomies and condoms aren’t even covered under the contraception mandate (which means STD/HIV/AIDS – more costly conditions to society than childbirth are being minimized) aren’t even covered. Men still have to come out of pocket for their contraceptives so what is the big deal about women coming out of pocket for their contraception if their employer does not want to condone pro-choice beliefs? Sounds like discrimination against men; and oppressive male laws, sexist pro-choice mandates for women and covert population control a la Asian government style.

    • The issue seems to revolve about the question: Do corporations have the same Constitutional rights as human beings?