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."

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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.

White House: "Covering contraception is cost neutral since it saves money" - The Birth Control Controversy and Using Today's Costs for Tomorrow's Savings

"Cost neutral and saves money?"

"What the hell does that mean?" asks the Disease Management Care Blog.

How can a White House Fact Sheet simultaneously assert that an insurance mandate simultaneously costs nothing and also reduces health care costs? Is this cognitive dissonance? Clever obfuscation? Insurance amateurism?

The physician DMCB fully understands the importance of contraception in women's health.

The logical DMCB knows someone has to eventually pay for birth control pills and doesn't understand the material difference between a mandate for buying contraceptive coverage versus buying mandated insurer coverage of contraceptives.

The accommodating DMCB wonders if religious leaders could compromise by agreeing to cover birth control pills with a "100% co-pay."

But the blogging DMCB couldn't resist looking at the of real world difficulty of reconciling today's insurer hard costs and tomorrow's savings.  Over the years, it has learned it's never that easy. 

Read on and see why that rule holds here.

So, just what is the evidence on birth control pills (BCPs)?

While BCPs' $15 to $50 a month retail cost contrasts with the average $13,000 to $17,000 total charge for childbirth, it's not that simple. Add up the additional cost of thousands of BCP prescriptions, their associated provider visits plus unnecessary testing, a 15% failure rate and a low but appreciable rate of side effects, its very possible that the aggregate costs of BCPs could exceed any savings from a fewer number of unwanted pregnancies.

The WH Fact Sheet addresses this by saying that prior studies show.....

"...there was no increase in premiums when contraception was added to the Federal Employees Health Benefit System and required of non-religious employers in Hawaii. One study found that covering contraception saved employees $97 per year, per employee."

As far as "Hawaii" goes, the DMCB discovered that White House is quoting "empirical evidence" from a 2001 study from the state's Insurance Commissioner. It describes the experience of four commercial health plans (anonymously named A, B, C and D) that went through a state-imposed contraceptive mandate.  "A" already covered it, "B" saw a 14 cents per member cost of "contraceptive services and supplies" and "no material changes in eligible charges for maternity related services," "C" had a $1.50 increase in "contraceptive costs" and an approximate $7 decrease in maternity costs per 1000 members (which the Commissioner summarizes as of "little effect"), and "D" which had an 11.5% increase in pregnant members as the contraceptive mandate was implemented.

And where does the Fact Sheet's "$97" savings figure come from? The DMCB suspects the number comes from Table 4 of a 2000 CDC and Washington Business Group on Health Report here which quotes scenario economic modeling of $562 vs. $659 per employee per year with and without a contraceptive benefit, respectively.

While it was thinking about the topic of economic modeling, the DMCB found this interesting 1996 study of the cost-effectiveness of family planning services for the British National Health Service. Based on a cost of £39 and "0.82" avoided pregnancies per year, the authors estimate that the NHS saved £754 "per avoided pregnancy." The DMCB suspects the White House would probably prefer to not quote this one.

The DMCB's conclusion: there is no real world evidence that oral contraceptives save any money by reducing claims expense. Any evidence that there are savings are based on methodologically suspect economic modeling and actuarial studies. While the good news is that BCPs probably won't increase insurance costs, the bad news is that it does little to tame health care inflation. That's probably why this small recent survey of U.S. health insurers indicates that they don't believe it will save money either.

Two other DMCB  points:

Given the experience in Europe, even if the mandate for contraceptive coverage wins this round, it will remain vulnerable to political and economic meddling... probably forever.  Women's health deserves better.

BCPs are easy to prescribe.  Given the likelihood of not enough PCPs to meet demand,it can be argued a physician office visit is unnecessary - which would further lower costs. It has also been argued that BCPs should be made available without a prescription, which begs the question of why this should be an "insurance benefit" in the first place.

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What The Debate Over Birth Control Pills As An Essential Benefit Tells Us About National Health Policy Making

While the physician Disease Management Care Blog understands the logic behind essential health benefit determinations, believes good health care includes access to reproductive services and also knows that an unintended pregnancy poses special threats to a woman's health, it also sympathizes with the U.S. Catholic Bishops' stand on birth control pills. 

Such is the luxury of cognitive dissonance.  Yet, the DMCB's real discomfort is over the broader health policy implications of defining BCPs as an essential health benefit that must be covered with only a few exceptions:

1. There are really two ultimate paths to a federal takeover health care.  The first is obvious: formal through the "nationalization" of either the payment or delivery of services. The second is de facto is through the creation of laws, regulations and standards that amount to an expanding domination of the payment or delivery of services. From an end-user perspective, the DMCB thinks there is little difference between the two and believes we are underestimating the ultimate end game for this and multiple other rules and regulations.

2. Decision-making like this can cut both ways.  While womens' health advocates can take comfort in the Obama Administration's courage in the face of the Bishops' push-back, it's possible that future hyper-rational, inflexible, evidence-based, legalistic, uniformist and technocratic decision-making like this will result in endless legalistic, politically charged and awkward decision-making that will always vex some big constituency.  This is the same science used to provoke the controversy over the merits of mammography in women less than age 50 as well as prostate cancer screening in men.  To make the point, the DMCB poses this silly but troubling thought experiment:  since men are just as responsible and should be given every incentive to not cause unwanted pregnancy, should condoms be an essential health benefit?  If persons with cancer run out of treatment options, should a right to control their own bodies and its technical availability make assisted suicide an essential health benefit? 

This time it was the Catholics' turn.  The next one could be yours.

3.  Without some sort of accommodation (which may be in the works), the Bishops aren't going to back down.  While a majority of their parishioners may believe in and have used birth control, that test fails at two levels: 1) society's institutions are supposed to stand for a higher standard and 2) decades and even centuries of religious interpretation are not up for a vote.  Standing for something is what faith is all about and Church leaders are simply not going to roll over on insurance that covers birth control for their employees and they're not going to offer access to birth control pills in the course of the provision of health care. Their only choice, other than millions in fines is to exit the health care arena.  David Brooks has an excellent discussion of why that's a problem. 

4.  It is said that the art of politics is the art of the possible: to work out compromise where everyone can walk away a winner.  While coverage of birth control pills is a victory for women's health advocates that a "base" can feel good about, this is also arguably a failure for a President who was committed to bridging differences and creating a health care system that had broad support.

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