Missouri state Rep. Paul Joseph Wieland (R) does not want his daughters’ health plan to cover birth control — even though two of those daughters are adults. So he and his wife sued the Obama administration. Though this lawsuit was rejected on jurisdictional grounds by a federal trial court, a panel of three appellate judges reinstated the suit on Monday. Should the Wielands ultimately prevail in their effort to deny birth control coverage to their daughters, the decision could have implications far beyond the Wieland family, potentially forcing insurance companies to maintain elaborate records to track many of their customers’ views on religion and sexual morality.
Wieland v. Department of Health and Human Services seeks to expand the Supreme Court’s decision in Burwell v. Hobby Lobby, which allowed many private businesses to ignore federal rules requiring them to include birth control in their employee’s health plans if the business’ owners object to contraception on religious grounds. The Wielands claim that a similar rule should apply in their case. Because they claim that they “cannot provide, fund or in any way be a participant in the provision of health care coverage” that includes birth control “without violating their sincerely-held religious beliefs,” they argue that they should be given a special health plan that does not include contraceptive care.
On the surface, this argument has some appeal — at least if one accepts the legitimacy of Hobby Lobby. The Wielands are helped by the fact that Missouri did offer the special contraception-free plan they seek until 2013, when a court order instructed the state to stop offering this plan in order to comply with the Affordable Care Act. They can also point to Hobby Lobby itself, which established that religious objectors may wield those objections to diminish the rights of third parties. According to the Wielands’ attorney, the couple “stand[s] in the same shoes” as Hobby Lobby, and Hobby Lobby’s “employees are to Hobby Lobby what the daughters are to Paul and Teresa Wieland.”
Hobby Lobby, however, rested on the Court’s conclusion that the federal birth control rules at issue in that case did not use the “least restrictive means” of furthering the government’s interest in protecting women’s health. As the Justice Department explained in its arguments in Wieland, it’s not at all clear that the same thing is true in this case.
For one thing, it is a relatively simple administrative task for an insurance company to note that the plan that covers Hobby Lobby’s employees does not include birth control and to adjust premiums accordingly. It is much more difficult for insurers to keep track of the particular religious beliefs of every individual in their network of customers and adjust each plan according to those religious beliefs. And, despite the fact that Missouri used to offer a contraceptive-free plan, the legal rule that the Wielands seek could require insurers to track a large number of different religious objections.
As ThinkProgress previously explained, “[w]hen a vaccine became available for a common sexually transmitted disease . . . many people raised a religious objection to the vaccine on the grounds that it would reduce the potential consequences of sex and thus lead to greater promiscuity. So some parents could object to having to pay for insurance that covers this vaccine. Or they may object to paying for coverage for STD treatments generally, on the theory that the potential consequences of sex are even greater if a person who becomes infected with an STD must pay the full out of pocket costs for medical care or else go untreated.”
The Wielands’ legal theory, moreover, could stretch far beyond families led by parents who object to contraception.
[I]magine a plaintiff who doesn’t just object to their daughters having birth control — they object to anyone having birth control. The nature of health insurance is that all of an insurance plan’s participants pay into a pool of money than any other participants can draw money out of when they need medical care. So even if a particular plaintiff’s own insurance doesn’t cover contraception, they would still be paying into a pool of money that other people could draw upon to pay for coverage that the plaintiff might object to. Moreover, while the insurance company might try to solve this problem by “walling off” the plaintiff’s premiums so that they could not be spent on contraceptive care, this would impose additional administrative costs on the insurer, and money is fungible. The only truly reliable way to ensure that a given insurance customer’s premiums are not used in a way that helps some woman, somewhere in the country to obtain birth control is to forbid the insurance plan from offering contraceptive coverage to anyone.
That might be an acceptable outcome for Paul and Teresa Wieland, but it would be a truly extraordinary expansion of American religious liberty law. A law intended to give religious objectors personal exemptions to laws they oppose would instead permit those objectors to impose their beliefs on thousands — potentially even millions — of individuals who do not share those beliefs.
There are, however, some signs that the Supreme Court might find the Wielands’ arguments for expanding Hobby Lobby lacking. As Justice Anthony Kennedy wrote in his Hobby Lobby concurrence, he may be less willing to side with religious objectors when it is “more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.” Given the burden the Wielands’ legal rule would impose upon insurers, there is at least some chance that Kennedy will reject their claim if it reaches the Supreme Court.