Providing two college-age women with health insurance that covers birth control, according to an attorney for Missouri state Rep. Paul Joseph Wieland (R) and his wife Teresa, is the equivalent of giving your children free access to a “stocked unlocked liquor cabinet.” In case the judges hearing his client’s case did not find that analogy particularly compelling, he also compared birth control to pornography.
If the Wielands’ lawsuit succeeds, they will win the right to deny their three daughters — two of whom are adults — a health insurance policy that covers contraception. Wieland and his wife claim that they “cannot provide, fund or in any way be a participant in the provision of health care coverage for contraception, sterilization, abortions or abortifacient drugs and devices, such as Plan B, ella, and copper IUDs, or related education and counseling, without violating their sincerely-held religious beliefs.”
The Wieland family is insured through a health plan Missouri offers to its employees. They allege that Missouri expanded this plan in 2013 to include contraceptive care in order to comply with federal rules that require employer-provided plans to include this care. The gist of their argument is that they should be allowed to continue to remain on Missouri’s health plan for state employees, but that they should also be offered a special carve out so that their plan does not cover contraception and other reproductive services that Paul and Teresa Wieland find objectionable.
Not that long ago, this would not have been a particularly strong legal argument, but the Supreme Court’s recent decision in Burwell v. Hobby Lobby gives the Wieland parents much more of a leg to stand on. Hobby Lobby held that many private employers could refuse to include contraceptive coverage in their health plans if the companies’ owners object to birth control on religious grounds. Paul and Teresa Wieland’s attorney told a federal appeals court on Monday that his clients “stand in the same shoes” as Hobby Lobby, and that Hobby Lobby’s “employees are to Hobby Lobby what the daughters are to Paul and Teresa Wieland.”
Yet, while the Wieland parents would like the courts to see this case as a simple application of Hobby Lobby, they could wind up significantly expanding that decision if they are ultimately victorious. As the Justice Department explained to the court, the relief that Hobby Lobby sought in its case was, at the very least, administratively simple for an insurance company to manage. Hobby Lobby negotiates with an insurance company to provide coverage to its employees. If Hobby Lobby wishes to buy a plan that does not cover certain forms of contraception, it is fairly easy for the insurer to simply note that Hobby Lobby’s plan does not include that kind of coverage, and to adjust premiums accordingly.
Paul and Teresa Wieland are asking for something quite different. They are claiming that individual participants in a group health plan should be able to dictate to their insurance company which kinds of coverage they do and do not want, as if they were ordering off of an à la carte menu, and that the burden should rest on the insurance company to keep track of who elected what kind of coverage and what premiums to charge them.
Though the Wielands object to birth control, there is no telling what other sorts of idiosyncratic objections other insurance customers will claim if these two parents get the exemption they seek. When a vaccine became available for a common sexually transmitted disease, for example, 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. In the regime the Wieland parents seek, the insurance company would carry the administrative costs of tracking which customers raise which objections to which procedures, and those costs would ultimately lead to higher premiums or reduced coverage for everyone.
Nor is it clear that a victory for the Wielands would be limited to cases such as this one, where two parents want to restrict their own daughters’ access to a particular kind of medical care (although the Wielands claim in their brief that it would be). A law prohibits the federal government from “substantially burden[ing] a person’s exercise of religion” except in limited circumstances. Yet the Supreme Court’s decision in Hobby Lobby held that it is essentially up to the plaintiff in an individual lawsuit to decide what constitutes a substantial burden to their religious exercise. The Hobby Lobby plaintiffs, Justice Samuel Alito wrote for the Court, “sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.”
Now imagine 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 insure 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.
Though there may be as many as four votes on the Supreme Court who are willing to take Hobby Lobby to absurd extremes, Justice Anthony Kennedy wrote in a concurring opinion that he may be less willing to accommodate religious objections 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 potential administrative costs that the Wielands seek to impose on insurance companies, the Wieland case may be exactly the kind of case Kennedy was thinking about when he wrote his concurrence.
(HT: Irin Carmon)