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 Bipartisan Press Release For When the Supreme Court Announces Its Affordable Care Act Decision

While D.C. borders on getting all wee-weed (remember that?) over the Supremes' any-day-now ruling on the constitutionality of the Affordable Care Act, Dems and Republicans alike are intensely scenario planning. The Disease Management Care Blog is no expert at that sort of political jujitsu, but it suspects that in addition to teeing up the talking points, news conferences and interviews, some sort of press release will be necessary.

Knowing how busy both the White House and the House Speaker's office are dealing with other pressing business, like sponsoring multiple bills that have no hope of passage, the patriotic DMCB is pleased to do its part. It offers a partisan but "generic" and plug n' play press release that explains a lot of what's been going on. This novel release can be put out on the wire within minutes of the coming Supreme Court's decision:

(Select one) From The White House  or Speaker of the House
Office of the Press Secretary
______________________________
For Immediate Release

[Select: President Obama/Speaker Boehner] Use Astrophysics To Praise Supreme Court Affordable Care Act Ruling

WASHINGTON, DC - Today [select one: President Obama/Speaker Boehner] reacted to the Supreme Court's ACA ruling with the following statement:

"While today's U.S. Supreme Court's ruling was not what the American people wanted, I want my fellow citizens to know that, while we will abide by the decision, the large majorities of Americans in the many parallel universes who support my party's position are benefiting from a different Court decision as I speak to you today."

"In addition to having travelled all over the United States, I and my staff have spent considerable time in alternate time-space realities where there are hundreds of millions of other Americans in the multiverse. They have agreed with my party's agenda. There are also dozens of Supreme Court Justices such as [select: Nancy Pelosi/Newt Gingrich] who have upheld the jurisprudence contained in the closed information loops on this version of planet Earth."

Thanks to the success of the [select: President's/Speaker's] novel approach to splitting quarks to convert dark matter to antienergy, he can now go beyond the simple legal and political pseudorealities of this universe and tap the wisdom of other pseudorealities. For example, in one universe, where bicoastal California and New York [select: are the only states that exist/don't exist], the [select: President/Speaker] noted "This decision puts the momentum for the fall elections on our side. We don't have to talk to anyone and care about their opinions."
------------------------

As an aside, after hearing an erudite webinar on health reform, checking with Intrade and communing with the prognostication spirits, the DMCB **predicts** that the Supreme Court will overturn the Affordable Care Act's individual mandate provision.  That's because

1) oral arguments suggested the Justices have serious concerns with it, but more importantly...

2) striking down only the mandate means leaving the rest of the law intact. The gives something to everyone, which

3) preserves the reputation of the Court, which is also being increasingly painted as partisan.

The ACA SCOTUS Legal Lexicon

As it navigated the miasma of the Supreme Court hearings on the constitutionality of the Affordable  Care Act (ACA), the Disease Management Care Blog struggled with a host of unfamiliar acronyms, catch phrases, nostrums, euphemisms and tweetisms. Since the DMCB cannot let any novel verbiage go unexamined, it is pleased to offer readers this ACA legal lexicon. The DMCB plans on using each of these terms once a day in the coming days so that its colleagues and enemies alike recognize its health reform chops.

Now you can too:

"Boatload" - a description by one Justice of the amount of cash available to the states, assuming that they go along with the Washington's expansion of Medicaid eligibility. It seems a "bloodbath" is what the states fear if coming shortfalls prompt future administrations to cut budgets while simultaneously insisting that the eligibility rules remain.  Also see "unfunded mandate."

"Cruel and unusual" - the specter of the Supreme Court Justics and clerks having to do what most of Congress never did: read all of the ACA. This was brought up during arguments over "severability" and how to invalidate various provisions. See "crimes against humanity" caused by having to read all the regulations that are currently being promulgated under the ACA.

"SCOTUS" - stands for the Supreme Court of the United States.  Two other US examples include "POTUS" (President of the United States) and "DMCBSOTUS" (Disease Management Care Blog Spouse of the United States).

"Train wreck" - a television reporter's initial assessment of the Administration's efforts to defend the the ACA before SCOTUS.  While one U.S. Senator thought the term was extreme, the DMCB says Mr. Reid should be of good cheer: it could have been worse.

"Bipartisan" - a remarkable rebranding of the ACA by a Presidential spokesperson after the term "train wreck" (see above) was widely quoted in the mainstream media.

"Burial insurance" - a foil used by one Justice to neutralize the debate over whether the government can compel citizens to buy broccoli. Everyone will use health care and everyone will also die, so is it both "necessary and proper" for the Feds to mandate burial insurance?

"Salvage job or a wrecking operation" - the two broad alternatives for SCOTUS as they grappled with the ACA. For another example of "salvage job," see "bipartisan" above; for an example of the latter, see Fox News.

Happy Friday!

Image from Wikipedia