The Contraception Mandate: The Supreme Court Hobby Lobby Decision's Five Ironies

Much of the commentariat's dismay over the setback of Obamacare's contraception mandate has been based on the twin principles of women's health and economic justice.  But for an unthinking Supreme Court majority, says critics, the U.S. lost an important chance to link federal health policy to the enlightened science of preventing unwanted pregnancies.

Which leads to five ironies:

1) The Supreme Court Justics would agree that they know little about health or economics: It was the conservative Mr. Scalia who opined in another case involving health care that the issue at hand was not "known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory." 

No one should be surprised that the Supremes focused on the law.

2) This isn't about health or economics, but ultimately about Progressivism: In this timely Wall Street Journal essay, Charles Murray distinguishes between classic liberalism and progressivism.  The latter was first championed by President Woodrow Wilson and, decades later, still promotes a reliance on disinterested experts to mold social policy in the interest of collective well-being. One tradition of progressive thought is that the Constitution is ill-suited to the eminently rational work of those experts. 

Progressivists everywhere are going to view the Hobby Lobby decision as a vindication of their long-held beliefs.

3) The Affordable Care Act is untouched: Contrary to popular opinion, the text of the Affordable Care Act makes no mention of contraception. Rather, it outsources the creation of an "essential health benefit" to Health and Human Services. In a classic exercise of modern progressivism, its experts - not Congress - used a regulatory process to determine that significant religious considerations should not stand in the way of women's public health and first dollar coverage of the pill.

Repeat: the Affordable Care Act is untouched.

4) Blame Bill Clinton: As the PHB understands it, the experts in Health and Human Services never contested that Hobby Lobby's owners were deeply religious or that oral contraceptives also prevented implantation of a fertilized egg, i.e., led to an abortion. When that was examined under the requirements of Religious Freedom Restoration Act that was originally signed into law by Bill Clinton, Mr. Alito managed to craft a 5 to 4 majority.

By the way, at the time RFRA was passed, both chambers also had Democratic Party majorities.
 
5) When It Comes to Experts, You Get What You Pay For: For better or worse, when competiting interests lead to winners and losers, we turn to our court system. Since it's unlikely that the U.S. is going to dismantle its legal system, experts would be best advised to craft compromises that accommodates reasonable constitutional threats to their reasoned planning.

Congress is probably going to step in and do what its outsourced Executive Branch experts should have done in the first place: reconcile the RFRA and access to contraceptives.  We deserve better from HHS.

The Contraception Mandate: SCOTUS Quotes

Liberals are outraged and conservatives are overjoyed.  While the Population Health Blog is neither, it was interested enough to go to the Supreme Court's opinion page, read the majority opinion and and pull some of the more telling quotes:

Just where did the contraception mandate come from?

"....the Affordable Care Act requires ... health-insurance coverage to furnish “preventive care and screenings” for women without “any cost sharing requirements.” Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require.
 
The [IOM]  Guidelines provide that nonexempt employers are generally required to provide “coverage, without cost sharing” for “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling.”

Rights of corporations vs. the rights of individuals.

"A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty."

Religious liberty?

"...we must next ask whether the HHS contraceptive mandate “substantially burden[s]” the exercise of religion. We have little trouble concluding that it does.  [The objecting parties] have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges may result in the destruction of an embryo. By requiring ... their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs."

Does this mean coverage of vaccines and blood transfusions are at risk of being litigated?

"HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction. HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate"

What is the way out?

"The most straightforward way ... would be for the Government to assume the cost of providing the ... contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown that this is not a viable alternative."

Image from Wikipedia

A Runaway Steetcar Named Contraception Mandate

Here's comes the contraception mandate!

Consider the classic "trolley car" thought experiment:

There is a runaway trolley barreling down the railway tracks. Ahead, on the tracks, there are five people tied up and unable to move. The trolley is headed straight for them. You are standing some distance off in the train yard, next to a lever. If you pull this lever, the trolley will switch to a different set of tracks. Unfortunately, you notice that there is one person on the side track. You do not have the ability to operate the lever in a way that would cause the trolley to derail without loss of life (for example, holding the lever in an intermediate position so that the trolley goes between the two sets of tracks, or pulling the lever after the front wheels pass the switch, but before the rear wheels do). You have two options:

 (1) Do nothing, and the trolley kills the five people on the main track,

 (2) Pull the lever, diverting the trolley onto the side track where it will kill one person.

Which is the correct choice?

While this thought experiment has lived on through countless variations and even more debate, the Disease Management Care Blog was taught in a long bygone ethics class that the choices boil down to a utilitarian argument (pull the switch because five lost lives is worse than one lost life) vs. the moral argument (don't pull the switch because, in a situation for which you bear no responsibility, you have a personal duty to not sin by taking a life).

While the DMCB could ruminate on what the Fat Lady would advise, that's not the point here. Rather, the DMCB points out that philosophical choices are unsettled and that there is plenty of room for intelligent argument on both sides.

Which brings us to the Little Sisters of the Poor and their appeal over the Obamacare contraception mandate. 

As the DMCB understands it, this Catholic religious order wants to be exempted from the exemption process that requires the completion of a one-page "self certifying" form. The purpose of the self-certifying form is to allow organizations like Little Sisters to exclude birth control pills (the moral arguments on why it's regarded as sinful can be found here) as a covered benefit for its insured employees.

Completing that form would oblige the insurer, not the buyer, to provide access to contraception services that are mandated by the Affordable Care Act. After checking out pages 39877 and 39878 of the Federal Register, DMCB understands that Washington DC defends this "accommodation" as a cost-neutral solution (fewer pregnancies underwrite the cost of the contraceptives) and as a "administrative" cost that is spread across the risk pool. Accordingly, neither arguably obliges a Catholic organization to meaningfully participate in (pay for) what it regards as a moral sin.

But, says the DMCB, signing the self-certifying form triggers the accommodation which, in turn, leads to coverage of contraceptives. The Little Sisters of the Poor are, in effect, being asked to pull the enabling trolley switch.  Sure, it's not the death of innocents or the trading of lives, but the underlying parallels to the thought experiment still apply. These nuns are being asked to choose the lesser of what they regard as two sins and trigger the contraception coverage.

 In simplistic terms, these nuns are instead choosing a classic moral answer.

From an ethics standpoint, the contraception mandate is far more murky than it appears.

Two additional thoughts:

1.  The contraceptive mandate is a trolley car conundrum of the government's making. They're the ones that built the tracks and put the nuns - and other persons of conscience -  at the switch.

2. In that long bygone ethics class, the DMCB was confronted by a variation in the trolley care thought experiment. Supposed you were held at gunpoint and non-compliance also meant your death in addition to the death of five innocents?  The moral answer would be that your personal duty to do no harm to extends to yourself and you would need to take the bullet. 

That's why the DMCB fears that the Sisters are not going to cooperate even if the government legally prevails in overcoming their objections. They probably mean it and will go out of business.  To make a statement in the best tradition of civil disobedience, they could continue to provide services, refuse to pay the fines and go to jail. 

Yikes.

CODA: It turns out that the particular insurer is also exempt from the contraception mandate. That makes much of the Little Sisters' objections legally moot, but that's not the moral point.