By Ernest A. Canning on 12/9/2013, 5:24pm PT  

[This article now cross-published by The Progress...]

The government's Supreme Court petition [PDF] in the upcoming cases concerning a supposed 'religious right' of for-profit corporations to ignore the contraceptive coverage mandate of the Afford Care Act (ACA) is a worthwhile read, simply because it slices through the fog of the GOP's relentless, anti-Obamacare propaganda war. That war includes a purported religious assault on the scientific, economic, egalitarian and humanitarian basis for contraceptive coverage.

Of course, the brief also contains compelling legal reasons why for-profit, corporate employers have no business dictating to their female employees whether or not they should opt for FDA-approved contraception in order to meet their own personal health care needs.

As we recently reported, where mainstream media articles that focus on every glitch in the federal website (and on provider cancellation of deficient policies), very few article mentioned that, since the passage of the ACA, health care price inflation has slowed to its lowest rate in the past 50 years. Fewer still have mentioned that the GOP's repeatedly proposed repeal of the ACA would return us to a "free market" status quo that not only left 47 million Americans without any health care coverage, but was so corrupt and dysfunctional that nearly 45,000 of our citizens died each year simply because they were too poor to afford coverage. The 45,000 is in addition to the number of Americans who died under that status quo because carriers used the excuse of "preexisting conditions" to deny coverage for vital procedures. Pre-ACA, medical bills contributed to half of the personal bankruptcies in the U.S.

In listing reasons why the contraceptive coverage provisions are based upon a "compelling" governmental interest, the government's SCOTUS petition both debunks GOP myths about the government's pre-ACA role in mandating minimum conditions in government-subsidized group health care plans and in explaining why the ACA already appears to have helped in blunting rising health care costs...

What 'free market' health care system?

As we previously observed, right wing claims about "death panels" and "government-run health care" have served to mask basic realities pertaining to the pre-ACA U.S. health care system and what amounts to beneficial but rather modest reforms of that system under the ACA.

While Republicans boast about the wonders of "free markets," the truth, as argued by the government's Supreme Court petition, is that, even before the adoption of the ACA, our employer-based, group health insurance system relied upon a heavy dose of government subsidies, including some $242 billion in 2009 alone. Indeed, studies have found that, even before the ACA was adopted, Americans, devoted "more tax money, per capita, on healthcare than Germany, Australia, the United Kingdom or Canada" --- all single payer nations where health care is treated as a fundamental right, as opposed to a source of corporate profits as it is in the U.S.

"Government subsidized health care" in the U.S. did not begin with the ACA, even as the Act adds an additional $461 billion in subsidies in order to expand coverage to an additional 18 million Americans.

While Republicans have parlayed ACA requirements --- in these cases, the contraceptive coverage mandate --- attached to those subsidies into their canard about Obamacare as "government run health care", the truth is that such conditions, in the form of minimum standards, had already been attached, without controversy, to pre-ACA subsidies. For example, as noted in the government's brief: "in 1996, Congress required such plans to cover certain benefits for mothers and newborns," and "In 1998, Congress required coverage of reconstructive surgery after covered mastectomies".

According to the Congressional Budget Office, the ACA simply added minimum standards for government subsidized group and individual plans, including "certain preventive-health services without cost sharing --- that is, without requiring plan participants and beneficiaries to make copayments or pay deductibles or coinsurance."

So, there is nothing new here, in these contraception mandate cases, to the idea that a certain set of minimum standard requirements must be met in exchange for government subsidies.

Preventive care

Although, when measured against the advantages of a single-payer system, the ACA falls far short of the ideal "reform", it does contain significant improvements over the corrupt and dysfunctional pre-ACA system.

Relying upon scientific evidence the ACA attempts to shift the pre-ACA focus of treating "acute problems and the urgent needs of patients" to preventive care. It offers, according to the government's petition, an "effective tool in improving health and well-being and has been shown to be cost-effective in addressing many conditions early."

Both the ACA and Health Resource and Services Administration (HSA) regulations require "coverage of preventive services without cost sharing" for a number of preventive care services, such as certain blood screening tests, immunizations, and certain types of preventive care and screenings for infants, children and adolescents. The government's Supreme Court petition notes that the contraceptive coverage mandate is part of those scientifically-established needs, based on science that focuses on the differences in male and female preventive care needs and the fact that "women of child bearing age spend 68% more in out-of-pocket health care costs than men."

According to the Institute of Medicine, "nearly half of all pregnancies in the United States are unintended," resulting in "adverse health consequences for both mothers and children...including inadequate prenatal care, higher incidence of depression during pregnancy, and increased likelihood of preterm birth and low birth rate." In addition to the central health concerns, the Institute finds that, in 2002 alone, the cost of unintended pregnancies in the U.S. was nearly $5 billion.

Substantial burden?

As we also recently reported, in the two cases now pending before the U.S. Supreme Court, for-profit corporations argue that the ACA's contraceptive mandate violates the corporate employer's rights under the Religious Freedom Restoration Act of 1993 (RFRA) and the Free Exercise Clause of the First Amendment to the U.S. Constitution. The RFRA, which was signed into law by President Bill Clinton in 1993, requires that an otherwise neutral government action "not substantially burden a person's exercise of religion" absent a compelling governmental interest.

In its argument, the government, in addition to challenging the concept of religious "corporate personhood," disputes the idea that the contraceptive mandate imposes a "substantial burden" upon an employer's "exercise of religion"...

A group health plan 'covers many medical services, not just contraception'...The decision as to which specific 'services will be used is left to the employee and her doctor'...'No individual decision by an employee and her physician --- be it to use contraception, treat an infection, or have a hip replaced --- is in any meaningful sense [her employer's] decision or action.'

Citing a 2012 U.S. District Court decision, the government adds that the "RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own."

Compelling government interest

Even if one were to assume that the contraceptive mandate imposed a "substantial burden" upon the free exercise of religion by a for-profit "corporate person," the ACA, according to the government's Supreme Court brief, advances compelling government interests for the mandate in terms of cost containment and "comprehensive insurance system benefits with a variety of benefits available to all participants."

In one of the two cases now before the Supreme Court, Hobby Lobby Stores, Inc. v. Sebelius [PDF], a sharply divided "court of appeal held that the beliefs of the [controlling shareholders] (which the court imputed to the corporations) trump the rights of the corporations' 13,000 full-time employees and their family members to receive the health coverage to which they are entitled by federal law," the government noted in its petition. "The majority found it unremarkable that, under its interpretation of the RFRA, for-profit corporations could obtain religious exemptions that come 'at the expense of their employees'" because the employees are free to purchase contraceptives.

That position, the government contends, ignores the fact that "Congress enacted the women’s preventive-services coverage requirement because it found that women already spend significantly more on out-of-pocket health-care costs than do men...And Congress specified that recommended preventive services be covered without cost sharing, in light of evidence showing that such expenses discouraged use of the services."

Citing case law, the government forcefully argues that it has compelling interests in the "promotion of public health" --- an interest that is served given that "lack of contraceptive use has proven in many cases to have negative health consequences for both women and children." That, in turn, is linked to a "separate compelling interest in assuring that women have equal access to health care services." Thus, the government argues, the inclusion of contraceptive coverage assures "that the goals and benefits of effective preventive health care would apply equally to women..."

Sex, science and the religious right

Although not specifically addressed by the government's brief, it is helpful to see these contraceptive mandate cases within the broader conflict between science and religion, especially since, at least for right wing Christians, the combination of religious doctrine and sex seems to lead into a headlong flight from reason, such as occurred with the ultimately ill-fated attempt to prevent same sex marriage.

Those objecting to the use of contraceptives include Catholics, who might be described as members of a mainstream religious sect. But suppose we were dealing with a for-profit corporation whose principle shareholders were Jehovah's Witnesses who believe it immoral to accept a blood transfusion.

Would it be appropriate then to allow such corporations to refuse to cover life-sustaining blood transfusions to an employee/patient on the grounds that it imposed a "substantial burden" on the for-profit corporation's "free exercise of religion"?

It is one thing to have a philosophical discussion as to whether "freedom of religion" requires "freedom from religion." Here, we deal with the conflict between what an employer may find morally repulsive and the science involved in sound medical care. That entails much more than simple beliefs. A Supreme Court decision that would permit employers to intervene between physician and patient on religious grounds could threaten the health and safety of all. That is what is at stake in these cases. Nothing less!

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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