The Recent SCOTUS Ruling on Contraception Shows Why Employers Should Not Be Insurance Providers

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Here are two propositions that I hold to be absolutely true and valid.

Proposition #1: Access to contraception is an important and non-negotiable part of women’s health coverage. Women have a right to decide whether or not they would have children, how many children they would have, and when they will have them. Any health care plan that does not cover contraception is neither comprehensive nor equitable, and any attempt by the government or industry to create minimum health care standards must include contraception.

Proposition #2: The Constitution of the United States demands that the government make no law abridging the free exercise of religion. The largest religious demonstration in the United States, the Roman Catholic Church, has opposed contraception for at least 1500 years. For somebody who holds this view, providing contraception for others is inherently sinful, and nobody should be required by the state to engage in activities that they consider inherently sinful without an overwhelming state interest at stake.

As I said, I consider both of these propositions to be equally true, and yet, they are completely inconsistent with each other. This week, for the second time, the Supreme Court tried to dance through this minefield. Six years ago, in the Burwell v Hobby-Lobby decision, the Court ruled that “closely held” family corporations were exempt from the contraception mandate in the Affordable Care Act. And just this week, the Court upheld a Trump Administration rule exempting any employer with a sincere religious objection to decline to provide contraceptive care in their health plans.

It is important to note here that the Court did not give blanket approval for contraception exemptions in the absence of a law or executive decision. Since Trump’s rule has no legislative backing, any future president could rescind it and implement a new regulation, from which sincere religious believers would not automatically be exempt. Nonetheless the “sincere religious belief” standard raises some fascinating (and disturbing) implications for employer-provided health care. For example:

  • Can a Jehova’s Witness refuse to provide insurance that permits emergency blood transfusions?
  • Can a Scientologist drop medications that treat depression and anxiety from a prescription drug plan?
  • Can a Mormon-owned university refuse to provide contraception to unmarried employees?
  • Can somebody who holds strict views on sabbath observance require employees to have a health plan that does not permit elective treatment on their sabbath?
  • Can somebody who believes that photographic imaging steals people’s souls refuse to cover X-rays and MRIs?
  • Can somebody with a sincere religious objection to overpopulation refuse insurance for medical care that extends life beyond 70 years?
  • Can an employer who believes, however sincerely, that twins are a demonic abomination, create policies that deny prenatal care to twin babies?

Some of these beliefs are actual things that courts could have to decide someday, but all of them are at least within the realm of possible human belief. And, a secularist would argue, all of them are as legitimate as the contraception exemption that the Supreme Court upheld today. The core problem here — balancing religious freedom and freedom of conscience with an employer’s responsibilities — has no solution as long as an employer’s responsibilities include providing health insurance. As my friend and colleague Angela Clayton recently wrote, there is an easy way to solve the problem: “Get employers (religious and non-religious) of our healthcare.”

Americans do not really understand how weird it sounds to people outside the country when we say that we get our health insurance through our employers. It would be hard to think up a worse way to do it. Along with creating unnecessary religious conflicts, employer-provided health insurance distorts the insurance market, distorts the health-care market, limits workers’ mobility, keeps salaries low, burdens small businesses with uncontrollable expenses, and drives health-care costs through the (very expensive) hospital roof.

Like most of the really dumb things that large groups of people do, nobody actually sat down and decided to make employers responsible for health insurance. It just sort of happened as a response to several decisions that FDR’s administration made during World War II. In 1942, Roosevelt, as a wartime measure, issued an executive order freezing both wages and prices in an attempt to stabilize the economy. Benefits, such as pension plans and health insurance — which very few people had in any form — were exempt. Three months later, the IRS ruled that employer-provided insurance was not taxable to the employee.

The effect was almost immediate: barred from increasing salaries, employers competed for employees in a tight labor market by increasing benefits. When America entered World War II, only 1.3 Americans had health insurance of any kind. When the war ended, the number had grown to 32 million, nearly all of it provided by employers.

Now, 75 years later, insurance has simply become too entwined with employment for us to separate the two without doing something bold and daring. Which is why we need to do something bold and daring — something like following every other industrialized nation in the world in using the organizational and purchasing power of government to provide health insurance to all Americans, or, as this years’ crop of only-slightly-left-of-center Democratic presidential contenders called it, “Medicare for All.”

Such a system would have lots of benefits for even the greediest of capitalists: it would make the labor market more labor and responsive to new developments, bring health-care costs to their true market value, remove expensive obligations from employers, and eliminate massive inefficiencies in our health care system. It would also meet the goal — dear to the bleedingst liberal hearts — of making sure that everybody, no matter their income level, had access to life-saving health care.

And, as an added bonus, it would eliminate the need for anybody to determine which employers had to provide which health benefits in opposition to their religious beliefs, sincere or otherwise.

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Michael Austin is a former English professor and current academic administrator. He is the author of We Must Not Be Enemies: Restoring America’s Civic Tradition

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