Tuesday, February 14, 2012
Dazed and confused (on the HHS mandate)
I confess that I remain confused about President Obama's proposed "compromise" on the HHS mandate. It seems to me like it might do more than nothing, but not a lot more than nothing. Let's put to the side the issues created by the administration's failures 1) to exempt self-insured employers from the contraceptive mandate; 2) to exempt religiously affiliated insurance providers. For objecting employers who rely on outside insurance providers, I still have questions:
If the insurer did not pass on any increased cost for contraceptive coverage to the objecting employer (either because there is no increased cost or because the insurer was required to spread the costs among all non-objecting insureds), and if the transaction by which the contraceptive coverage is procured would take place without any communication or action by the objecting employer, would the revised Obama rule still be objectionable? It seems like the risk of scandal is lower, but that's not the only consideration, I realize. What would the precise objection be under that scenario?
If the answer is yes, to what extent does the remaining objection turn on whether any universal access to contraception is objectionable? In other words, would the same objections persist if the government agreed to pay the cost of contraceptive coverage? If not, what is the difference between an insurer paying for the coverage and spreading the costs among all insureds versus the government paying for the coverage and spreading the costs among all taxpayers? Is the difference only one of degree?
The initial HHS rule was so egregious that it was easy to criticize it without getting into deeper questions about the goods and services covered -- e.g., whether contraception should be considered as a core element of "health care," whether some of the covered drugs cause abortions, etc. Judging from how the debates have been unfolding since Friday, it seems (to me) that some of those deeper questions are coming closer to the surface. That's not necessarily a bad thing, but does it suggest that President Obama's strategic move on Friday has made the straightforward religious liberty argument less obvious?
https://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/dazed-and-confused-on-the-hhs-mandate.html
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Rob Vischer sets the problem up by proposing that we put aside the administration's failure "2) to exempt religiously affiliated insurance providers." I think this might actually make it impossible to understand the real issue.
Putting (2) aside means taking it as granted that the government may require health insurance against pretty much anything. Once that is taken as granted, all the complicated reasoning begins: can a way be found to provide an accounting arrangement that leaves the insured's cooperation sufficiently material and remote? (This is, on a charitable reading, what the administration's proposed accommodation is meant to do.)
Now given that we have put (2) aside, it may well be that some such accounting arrangement can be found--if not the one currently proposed, then perhaps some other. But once we allow (2) back into consideration, as at some point we must, then we can see that there was a straightforward problem for free exercise all along. An institution ought to be able to have an insurance plan that doesn't cover things it doesn't accept, and an insurance company ought to be able to offer a plan that doesn't cover things _it_ doesn't accept. Those two entities ought to be able to make a straightforward contract with each other. But the HHS regs makes this illegal.
It's a bit like this. If we accept that the government can require all hospitals to use caterers, and that it can require all caterers to serve meat, then we have the problem of figuring out how vegetarian hospitals can conform to the law without violating their consciences--perhaps they can be allowed to not pay for the meat, and the government can force the caterer to provide it for free. But this is still objectionable to the hospital, and it might be objectionable to the caterer too. There ought to be space in our society for vegetarian hospitals and vegetarian caterers, and they ought to be able to make contracts with each other. Likewise, then, for institutions and insurers that don't go for contraception, sterilization, and the like.