By Michael Hiltzik
Los Angeles Times, July 1, 2014
Is there anything more absurd than the American way of delivering healthcare coverage?
Most Americans receive coverage through their employers. In the wake of Monday’s Hobby Lobby decision by the Supreme Court, businesses accounting for about 52% of all privately employed workers now have the option to discriminate among their employees and among the healthcare benefits they offer, based on their owners’ religious beliefs.
The U.S. reliance on employers to provide coverage on this scale is unique among major industrialized nations. In those countries, as Jonathan Cohn observes, “the government takes on this responsibility directly, by creating its own insurance program or regulating insurers as if they were public utilities.” This is essentially a definition of single-payer healthcare.
The alternative produces ludicrous results such as the Hobby Lobby decision.
It was hoped that the Affordable Care Act, which was at the center of that decision, would begin decoupling American healthcare from the tyranny of employer sponsorship. Americans who are out of work, or whose employers can’t or won’t provide them with healthcare benefits, now can buy coverage on their own, with government financial assistance if necessary.
This was a first halting step toward single-payer, which is more the norm in the developed world and plainly the most efficient and effective way of achieving universal coverage.
But it wasn’t enough of a step: The ACA still leaves most health coverage in the hands of employers. And it strengthens the hands of private health insurers in administering coverage and setting prices and terms for the doctors and hospitals providing care. The law was one step forward toward single-payer, and about three-quarters of a step back.
The Hobby Lobby decision underscores the patchiness of the ACA, by granting employers a huge loophole to avoid the law’s mandates — in this case, the mandate that coverage include reproductive services for women without deductibles or co-pays. At the center of the case were the evangelical Green family, owners of the Hobby Lobby retail crafts chain, and the Hahn family, Mennonites who own a wood furnishings firm. They asserted that the ACA’s birth control mandate offended their religious sensibilities; the court ruled that these sensibilities outweigh the ACA’s coverage standards.
As it happens, Justices Samuel A. Alito Jr. and Anthony M. Kennedy, in their majority and concurring opinions, respectively, implicitly acknowledged the wisdom of single-payer healthcare as a way forward.
They did so by advising the government to grant the business owners relief by establishing what is in effect a single-payer regime for the birth control methods at issue. (These are two “morning after” drugs and two forms of IUDs that the businesses term “abortifacients,” meaning they cause abortions.)
Rather than forcing the businesses to pay for those methods, the justices said, the government could follow the path it already has laid down for nonprofit religious organizations objecting to the birth control mandate. In those cases the coverage mandate and its cost are transferred from the religious employers to their insurers — but the insurers are compensated for the expense via a reduction in a healthcare tax they’re required to pay under the ACA.
In other words, the U.S. government becomes the single payer for those groups’ employees choosing those birth control methods. Alito and Kennedy would expand this accommodation to closely held businesses whose owners assert religious scruples.
The pertinent question then becomes: Why stop there? Offer the same accommodation for all employers for all coverage, and you have a single-payer system at last.
Among its virtues, a single-payer system would eliminate the subjective uncertainties about healthcare coverage that the Hobby Lobby decision intensifies by imposing a religious standard on that coverage.
A key problem with the religious standard is the difficulty of validating someone’s “beliefs.”
The majority and dissenting opinions in Hobby Lobby both bowed to the “sincerity” of the business owners’ religious beliefs. But this was just lip service, not a conclusion drawn from empirical data.
“The Hahns and Greens and their companies sincerely believe that providing the insurance coverage … lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken,” Alito wrote. But how could he possibly know?
Even assuming, for argument’s sake, that these families aren’t hypocrites in their personal lives, how are the courts to judge the sincerity of the next employer who comes forth with a “religious” objection to some aspect of the ACA, or to some other federal law?
Alito didn’t provide lower courts with a test to appraise piety. How could he? There’s no concrete definition of “religious belief,” which means there are no practical bounds to employers’ ability to pick and choose which laws they will honor.
One thing that is clear about the beliefs of the business owners in Hobby Lobby is that, regardless of whether they are sincere, they certainly are medically ignorant.
Alito acknowledged that the families’ claim about the four contraceptives being “abortifacients” isn’t a judgment based on science or medical practice, but on “their religious beliefs.”
In scientific terms, these beliefs are nonsense. That point was made crystal clear in an amicus brief filed by 11 organizations of reproductive health professionals, including the American College of Obstetricians and Gynecologists. They advised the court that the contraceptive methods challenged by the business owners are not, in fact, abortifacients. Alito acknowledged that they’re not classified as such by the Food and Drug Administration.
So the bottom line of the Hobby Lobby decision is that the provision of medical care to millions of American families will be contingent on feelings of their employers that may or may not be sincere, that have no practical limitations, and that have no grounding in medical science.
The only way to resolve this mess is to take employers and their “sincere beliefs” completely out of the picture — as Alito and Kennedy recommend. Remove employers and the insurance industry exits with them. What’s left is single-payer healthcare, which is the right way to deliver services that are matters of life and death.