Who’s the Boss? Why are our employers making our health insurance choices in the first place?

This guest cross-post first appeared on Slate.com.

Margaux J. Hall is the Center for Reproductive Rights Fellow at Columbia Law School. All views expressed are the author’s own.

This week, the Supreme Court hears oral argument in two cases asking whether for-profit business corporations have religious liberty rights. Hobby Lobby, a group of craft stores with 13,000 employees, and Conestoga Wood, a small Mennonite furniture maker, want to be free of the Obamacare requirement that employer-provided health insurance plans need to provide certain forms of birth control. They argue that their religious convictions prohibit them from covering such items. Religious institutions, reproductive-rights advocates, and others have sparred over the conflicting rights claims, but one important part of the conversation has been missing almost completely: Why are American employers deciding the contents of our personal health insurance plans?

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Public Briefing on Contraceptives Coverage Mandate from KFF

For those of you following the contraceptives coverage mandate litigation:

Later this month, the Supreme Court will hear two cases from for-profit corporations, Hobby Lobby Stores and Conestoga Wood Specialties, challenging the Affordable Care Act’s (ACA) requirement to cover contraceptives on religious grounds. On Tuesday, March 11, two weeks before the hearings, the Kaiser Family Foundation will host a public briefing and panel discussion from 9:30am-11:00am ET in its Washington, DC office to discuss the implications of these court cases on the ACA, corporate and individual religious protections, and civil rights. For those unable to attend, a live webcast will be hosted on kff.org.

Speakers include:

Welcome and Introduction Alina Salganicoff, Ph.D. (Moderator),Vice President and Director, Women’s Health Policy, Kaiser Family Foundation

An Overview of the Contraceptive Coverage Requirement and Legal Challenges Laurie Sobel, J.D., Senior Policy Analyst, Women’s Health Policy, Kaiser Family Foundation

The Religious Freedom Restoration Act and its Application to These Cases Marci A. Hamilton, J.D., Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University

Possible Rulings and Outcomes Tom Goldstein, J.D., Publisher SCOTUSblog, Partner Goldstein & Russell, P.C.

Panel Discussion on Implications


When: 
Tuesday, March 11, 9:30am-11:00am ET, (Registration and breakfast beginning at 9:00am)

Where: Barbara Jordan Conference Center, Kaiser Family Foundation Offices, 1330 G Street, NW, Washington, D.C., (one block west of Metro Center)

RSVP: Please register online to attend this event in person.

Live Webcast: A live webcast will be available on kff.org.

A solution to the contraceptives coverage mess?

While prepping for a guest lecture on the contraceptives coverage mandate currently before SCOTUS, I had the opportunity today to review the merits briefs filed in the Hobby Lobby case.  I think both petitioners and respondents put out their absolute strongest arguments, as one would expect at this highest level of review.  The government asserts a fairly convincing case that for-profit corporations were not meant to be covered by the Religious Freedom Restoration Act (RFRA) and that individual shareholders are not burdened by the mandate, and the respondents convincingly argue that RFRA does indeed apply and the numerous exemptions already offered by the government have eviscerated any claim that refusing religious exemptions to for-profit corporations is necessary to achieve a compelling government interest.

The respondents, Hobby Lobby and its family owners, articulate a variety of less restrictive alternative methods to achieve the government’s interest in promoting public health and gender equality, including having the government provide free access to contraceptives rather than demanding that employers do so. Interestingly, however, the respondents do not suggest simply extending the existing accommodation available to religious non-profits to for-profit corporations with religious objections.  This accommodation allows a religious non-profit that objects to contraceptives to sidestep the mandate, instead requiring that its insurance company exclude contraceptives from the employer’s plan and itself bear responsibility to provide preventive services without cost-sharing.   The rationale is that it should be at least cost-neutral for insurance companies to provide this coverage, on the grounds that preventing pregnancy is cheaper than covering new dependents.  (And for self-insured plans, there is a similar approach by which third party administrators bear the burden, and are compensated via adjustments to Exchange user fees.)

I can’t be certain why the respondents omitted this obvious alternative, but one possibility has to do with the fact that the accommodation is currently being challenged (e.g., by the Little Sisters of the Poor) as insufficient because objecting employers argue that they are still being required to facilitate access to objectionable services, even if they do not have to pay for them.

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TOMORROW: Second Annual Health Law Year in P/Review

Please join us for our second annual Health Law Year in P/Review event, co-sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the New England Journal of Medicine. The conference will be held in Wasserstein Hall, Milstein East C at Harvard Law School on Friday, January 31, 2014, from 8:30am to 5:00pm.

This year we will welcome experts discussing major developments over the past year and what to watch out for in areas including the Affordable Care Act, medical malpractice, FDA regulatory policy, abortion, contraception, intellectual property in the life sciences industry, public health policy, and human subjects research.

The full agenda is available on our website. Speakers are:  Read More

1/31: Second Annual Health Law Year in P/Review

Please join us for our second annual Health Law Year in P/Review event, co-sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the New England Journal of Medicine. The conference will be held in Wasserstein Hall, Milstein East C at Harvard Law School on Friday, January 31, 2014, from 8:30am to 5:00pm.

This year we will welcome experts discussing major developments over the past year and what to watch out for in areas including the Affordable Care Act, medical malpractice, FDA regulatory policy, abortion, contraception, intellectual property in the life sciences industry, public health policy, and human subjects research.

The full agenda is available on our website. Speakers are:  Read More

A new framework for considering the contraceptives mandate cases?

Just a quick pointer to an interesting new article out by Kara Loewentheil at Yale, When Free Exercise Is a Burden: Protecting ‘Third Parties’ in Religious Accommodation Law.  

Here’s her abstract (posted a few weeks ago before cert was granted):

As of November 2013, over 60 lawsuits have been filed under the First Amendment and the Religious Freedom Restoration Act (“RFRA”), challenging the contraceptive coverage requirement (“CCR”) of The Patient Protection and Affordable Care Act, more than half brought by for-profit employers with religious objections to providing insurance coverage for contraception. The conflict combines questions of the reach of the regulatory state, the nature and purpose of free exercise rights, women’s social and economic equality, and a lightning-rod political debate. No wonder then that these cases have produced a circuit split, and are now primed for a Supreme Court ruling, as two cert petitions in these cases were filed in September 2013. It is no surprise that these cases have produced such divergent results, because the problem lies not with the courts, but with the doctrine, which frames the conflict as being between the State and the religious objector. But as the CCR cases make clear, this relationship is often beside the point entirely. Rather, some religious accommodation cases regulate not only the relationship between the State and the objector, but a variety of conflicts and relationships between the religious objectors and various other rights-holders. The courts and the scholarship have occasionally noticed that such conflicts may exist but have not suggested any systematic way of thinking about or resolving them. To remedy this lacuna, I propose a framework for identifying and analyzing these under-theorized conflicts, elaborating on strands of concern for third parties in the doctrine that have never been fully fleshed out. I argue that once we identify the set of cases in which there are sufficiently weighty third-party interests at stake – whether practical or expressive – to merit deviation from the standard doctrinal framework, the question should be whether the State can provide a solution that respects all the rights in question. If so, it should have an obligation to do so. If not, the group with equality-implicating rights (again, whether practical or expressive) should “win” – with any “tie” going to the third parties, because the purpose of religious accommodation law is to protect the equality of religious objectors, not to privilege religion. The CCR suits present a paradigmatic example in which the State’s most important interest lies in its representation of the rights of third parties, and in which comprehensive solutions respecting all parties’ rights are possible but not doctrinally required, thus providing a clear illustration of why the framework I suggest would be an improvement in religious accommodation law. Nevertheless, there are also ways to better balance the interests involved through use of the existing doctrine, as the last part of this paper demonstrates.

1/31: Second Annual Health Law Year in P/Review conference

Please join us for our second annual Health Law Year in P/Review event, co-sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the New England Journal of Medicine. The conference will be held in Wasserstein Hall, Milstein East C at Harvard Law School on Friday, January 31, 2014, from 8:30am to 5:00pm.

This year we will welcome experts discussing major developments over the past year and what to watch out for in areas including the Affordable Care Act, medical malpractice, FDA regulatory policy, abortion, contraception, intellectual property in the life sciences industry, public health policy, and human subjects research.

The full agenda is available on our website. Speakers are:  Read More

SCOTUS and the Contraceptives Coverage Mandate

As everyone and their brother expected, SCOTUS has just decided to take up two cases challenging the contraceptives coverage mandate: Hobby Lobby, in which the 10th Circuit ruled in favor of the religiously-objecting (but secular, for-profit) employer, and Conestoga, in which the 3rd Circuit went the other direction, maintaining that “for-profit, secular corporations cannot engage in religious exercise.”

I think the First Amendment piece of this is pretty much open-and-shut: the requirement that employers offer health plans that provide contraceptives coverage free of charge is pretty clearly neutral and generally applicable.  Arguments around the Religious Freedom Restoration Act are much more interesting.  For our non-lawyer readers, the basic idea behind RFRA is that the federal government may not (1) substantially burden the right to free exercise of religion, unless it does so (a) in furtherance of a compelling interest, and (2) using the least restrictive means.  This is a high hurdle, otherwise known as strict scrutiny.

You can see several clear decision points under the RFRA analysis, and pretty much any one of them could go either way:

Do for-profit corporations have a right to free exercise?

As a threshold matter, RFRA offers protection only to those entities with free exercise rights.  Citizens United tells us that “corporations are people, my friend.”  So if that analysis applies to both the First Amendment’s free speech rights and free exercise rights, then corporations can at least pass go.  On the other hand, some courts have maintained that religion can only be exercised by individuals or religious organizations, such that RFRA would not apply to secular, for-profit corporations.

Does the contraceptives mandate impose a substantial burden? 

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Video now available of panel on “Reproductive Rights around the Globe”

Video of the panel discussion “Reproductive Rights around the Globe,” held at Harvard Law School on November 7, is now available via the Petrie-Flom Center’s website. The panel — cosponsored by the Petrie-Flom Center; the Human Rights Program; and the Child Advocacy Program at Harvard Law School; and the Harvard Global Health Institute — included legal experts on a variety of topics:

  • International trends in gamete donor identifiability v. anonymity – I. Glenn Cohen, Professor of Law, Harvard Law School; Faculty co-Director, Petrie-Flom Center
  • The politics of evidence and expertise in domestic and international abortion litigation – Aziza Ahmed, Associate Professor of Law, Northeastern University School of Law; Visiting Scholar, Petrie-Flom Center (Spring 2014)
  • Use of international fora, including courts and treaty bodies, to advance reproductive rights – Mindy Jane Roseman, Lecturer on Law, Harvard Law School; Academic Director, Human Rights Program
Link to the video here.

Dov Fox on Roe v. Wade

In a new piece at the Huffington Post, Bill of Health Contributor Dov Fox explores “The Forgotten Holding of Roe v. Wade — that states have a valid reason to regulate reproductive conduct because of an interest in “potential life.”

That “the State may [legitimately] assert” that interest, Roe held, “as long as at leastpotential life is involved,” explains why the government may, as a constitutional matter, restrict stem cell research that destroys human embryos, for example, whether or not those frozen embryos might otherwise be brought to term. That the fetus “represents only thepotentiality of life,” on the other hand, and accordingly lacks any interests of its own under the Constitution, explains why states may not, as many have tried, accord the legal status of personhood to human life beginning at conception.

The potential-life holding helps to resolve these and many other disputes over embryo contracts, fetal pain, and sex selection, for example, as I show in a forthcoming article. Arecent lawsuit exemplifies the enduring significance of Roe‘s potential-life holding. The case marks the first-ever federal challenge to fetal protection laws that punish women for using drugs during pregnancy.

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