Just Because A Company Is Owned By Christians Doesn’t Mean The Company Has Christian Beliefs

A good post by Jessica Pieklo at RH Reality Check:

What’s noteworthy about the decision in this case is not the outcome, but the detailed and well-reasoned dissent crafted by Circuit Judge Ilana Rovner. In examining the question of what it means for the Grotes to run a for-profit business to run according to the precepts of their faith, Rovner first points out that the business itself has “stated no religious goals as part of its mission, it does not elect its employees, vendors, or customers on the basis of their religious beliefs, and it does not require its employees to conform their behavior to any particular religious precepts.” Because, Circuit Judge Rovner reasons, there is simply nothing from the perspective of the company that demonstrates any religious beliefs, let alone sincerely-held ones that belong to the company, it is impossible to imagine the company, as distinct from its owners the Grotes, has any religious interests or rights to assert at all.

Breaking down the distinction between the owners and the company even more, Circuit Judge Rovner states what should be obvious: the owners do not provide the contraception coverage, the company does. Even in self-funded health plans like the ones offered by Grote Industries, those premium payments come out of the company’s bank account and not the owners. The Grotes are simply not at liberty to “treat the company’s bank accounts as their own” unless they are also comfortable waiving the personal liability protections afforded to them under corporate law as well. The Grotes, Circuit Judge Rovner points out, are not in any way personally compelled to engage in any activity they disapprove of, they do not have to approve or endorse contraceptive use, and can even actively discourage the use of contraception by others.

If we accept the Grotes’ argument then we must also consider whether their religious interests are burdened anytime an employee uses his or her Grotes Industries paycheck, or money from a health-care reimbursement account, to pay for contraception outright. That’s because the Grotes’ argument ignores completely that health insurance is an element of employee compensation. How an employee independently chooses to use that insurance is then arguably no different, from the law’s perspective, from the ways in which that employee decides to spend her take-home pay and that analysis does not change regardless if a health plan is self-funded or not.

Republicans believe that employers need protection from their slutty, filthy, non-Christian employees doing something the employers wouldn’t approve of with their compensation. In the real world, that’s not how it works. The 20 year old working in the stock room needs protection from her Christian bosses who are eager to use their power over her to shove their religion down her throat. The insurance she works for belongs to her, not to her bosses; and they have no right to tell her that she can only use her own insurance in ways that their religion approves of.

This is clearly going to be decided by the Supreme Court, and I suspect I won’t like the decision. But anything could happen (see the Obamacare decision).

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84 Responses to Just Because A Company Is Owned By Christians Doesn’t Mean The Company Has Christian Beliefs

  1. 1
    Robert says:

    Because, Circuit Judge Rovner reasons, there is simply nothing from the perspective of the company that demonstrates any religious beliefs…

    You mean, other than having a health plan with limitations and exclusions that explicitly match the moral teachings of the company owners’ church?

    I am inclined to agree that a publicly-held company has an extraordinarily difficult task to show that it needs to comply with a particular religion’s book of rules.

    I am also inclined to the view that a privately-held company needs to demonstrate consistency in the owner/management’s code of conduct, if and when their choices conflict with the law, and they if seek to be excluded from that law. Some companies can do this; Chik-Fil-A, for example, would be on very strong grounds if it sought an exemption from a law requiring businesses to be open seven days a week. Many others could not; for example, if Grote Industries had previously covered abortions in its health care plan, and then abortion coverage was required by the ACA, and they went crying to the court that as good Catholics they should be exempt…well, go pound sand.

    In the cited case, the dissenting judge appears to be going out of her way to ignore the previous conformance to Catholic teaching, however. As the majority opinion discusses, there is also a willful blindness to the religious burden being placed on the company’s owners by the government. The majority did not go into great detail on their exact reasons for dismissing the idea that the corporate form of Grote Industries makes the religious convictions of the owners moot.

    Let me posit a hypothetical. You and several other liberal cartoonists decide to form a corporation, CommieCorp. You decide that, rather than making more of your leftie propaganda broadsheets, you’re going for pure money and run nothing but tittie pictures. But you’re all hardcore socialists or worse in your private lives. You’re very successful (titties sell), and you never end up selling any shares to the public – it’s a private corporation, with you and the other pixel-stained wretches the sole owners. You all become so filthy rich and successful that none of you create anymore; you just have hirelings from India do it all while you swill grape juice and play video games all day.

    The Westboro Baptist Church seizes control of the government in a scenario so appalling that I cannot even bear to type it out. Nonetheless, those asshats are running the government. They pass the Communism Denunciation Act, requiring all cartoonists and cartooning corporations to publish and distribute paeans of praise to global capitalism and Jesus, and listing every crime of the communist and socialist regimes of the world in gory detail. You have to do it once a week, or there are big fines.

    You go to court, and ask the judge for injunctive relief on the grounds that the required speech would violate your sincerely held beliefs, and trample your First Amendment rights. (You are well-served by an amicus brief filed by your good friend Robert Hayes, who totally agrees with your position, because he tries to be consistent.)

    Should the judge grant you the relief?

  2. 2
    gin-and-whiskey says:

    Republicans believe that employers need protection from their slutty, filthy, non-Christian employees doing something the employers wouldn’t approve of with their compensation.

    It’s much more accurate to say “Republicans (and libertarians, and a lot of other people) believe that if you offer to pay someone ___ in exchange for ____, you should be generally free to set whatever criteria you want on the exchange. And they believe that any limits on those criteria should be minute, strictly constrained, and generally disfavored.”

    If you miscast this as a “gross sluts” thing then you’ll fail to understand why this actually a relatively popular view. There are lots of people who don’t hate women, but who generally believe in the values of increased contractual freedom. Moreover, most of the folks who are opposing this are in fact generally opposed to contractual limits.

  3. 3
    Ampersand says:

    Robert, that’s a very unrealistic analogy, because grape juice has no caffeine. I think I am the only cartoonist I’ve ever met who doesn’t drink caffeine constantly.

    Also, in your story, the first amendment has been repealed, so we can’t appeal to it. I say this because otherwise everyone has a first amendment right to refuse to say whatever they want, without regard to what they’ve said in the past. It wouldn’t matter if we had been publishing “communism sucks!” broadsheets every day for the last 25 years, we have an absolute first amendment to refuse to publish it tomorrow, and there’s nothing the government can do about it. Unless they’ve repealed the first amendment, in which case, we can’t appeal to it.

    A better analogy is if we had been saying, for the last twenty years, that the Flying Spaghetti Monster we worship hates diabetics, and as such we have always had a special in-house insurance plan that doesn’t cover diabetes treatment. Now the ACA comes along and says that all insurance providers – us included – have to cover “chronic disease management,” including diabetes. I certainly think we should be forced to do that (or, alternatively, that we should just give up on being an insurance provider and have our employees get insurance from the health care exchanges).

    We have no more right to pay our employees with a special company health insurance plan that can only be spent on medical procedures our religion favors, than we do to pay our employees with a special company money that can only be spent at a company store that we’ve stocked only with comic books we approve of. If our employees want to spend their wages on shitty Marvel comics, they have that right. We do not have the right to force them to spend their compensation only on good comic books. (Dammit.)

    (And btw, paying employees, unlike printing a broadsheet, is not an expressive act.)

    Gin & Whiskey:

    “Republicans (and libertarians, and a lot of other people) believe that if you offer to pay someone ___ in exchange for ____, you should be generally free to set whatever criteria you want on the exchange. And they believe that any limits on those criteria should be minute, strictly constrained, and generally disfavored.”

    Under this philosophy, why can’t companies pay their employees entirely in company money that can only be spent at the company store?

    If you miscast this as a “gross sluts” thing then you’ll fail to understand why this actually a relatively popular view.

    I think that the small minority of Christian employers who have objected to the ACA’s coverage requirements are coming from a pretty sexist philosophy. But this is not an important part of my reason for disagreeing with them.

  4. 4
    Simple Truth says:

    Grote is listed as an LLC.

    An LLC is afforded a lot of debt and tax protections, just as Judge Rovner said, and there are a lot of rulings that support her argument. The Grotes cannot just use company expenses to buy personal groceries, for instance.

    From Wikipedia:

    A Limited Liability Company (LLC) is a hybrid business entity having certain characteristics of both a corporation and a partnership or sole proprietorship (depending on how many owners there are). An LLC, although a business entity, is a type of unincorporated association and is not a corporation. The primary characteristic an LLC shares with a corporation is limited liability, and the primary characteristic it shares with a partnership is the availability of pass-through income taxation. It is often more flexible than a corporation, and it is well-suited for companies with a single owner.

    LLC members are subject to the same alter ego piercing theories as corporate shareholders. However, it is more difficult to pierce the LLC veil because LLCs do not have many formalities to maintain. So long as the LLC and the members do not commingle funds, it would be difficult to pierce its veil.[1] Membership interests in LLCs and partnership interests are also afforded a significant level of protection through the charging order mechanism. The charging order limits the creditor of a debtor-partner or a debtor-member to the debtor’s share of distributions, without conferring on the creditor any voting or management rights.[2] Limited liability company members may, in certain circumstances, also incur a personal liability in cases where distributions to members render the LLC insolvent.[3]

    It’s worth thinking about taxation and that debt to the government. If we allow a person to forego paying taxes at the same rate a sole proprietorship would be taxed, then they probably shouldn’t get to treat that company as a “mom and pop” establishment, and all that entails.

  5. 5
    Robert says:

    I demand the right to be paid in comic-book scrip, if I so choose. Or company-store money, for that matter. If your state’s currency is so weak that it must preemptively ban competition, I’m out.

    First Amendment? Are you saying corporations have Constitutional rights?

  6. 6
    mythago says:

    They pass the Communism Denunciation Act, requiring all cartoonists and cartooning corporations to publish and distribute paeans of praise to global capitalism and Jesus

    So, a direct violation of the Establishment Clause by forcing a company to proclaim religious affiliation? I grant you that the ACA is very complex, but I’m pretty sure it does not require any employer to declare “All acts of love and pleasure are Her worship” in the course of providing reproductive health care.

    Here’s an even simpler hypothetical: DoucheCanoes LLC has been run by members of a white-supremacist church since, like, forever, and has gotten big enough that it can now offer health insurance. The owners decide that they want to limit the insurance so that it does not cover fertility services to interracial couples, nor contraception to white couples, because they deeply and sincerely believe that while the law forces them to hire Those People, it shouldn’t force them to subsidize miscegenation or the genocide of the white race through attrition, as those things are sins.

    We are all on board with this exercise of their religious freedom, right?

  7. I am, for completely off-topic reasons, fascinated so far by this conversation (though it’s fascinating for on-topic reasons as well), and I just want to say that it’s making me miss my high school gemara classes.

  8. 8
    gin-and-whiskey says:

    “Republicans (and libertarians, and a lot of other people) believe that if you offer to pay someone ___ in exchange for ____, you should be generally free to set whatever criteria you want on the exchange. And they believe that any limits on those criteria should be minute, strictly constrained, and generally disfavored.”

    Under this philosophy, why can’t companies pay their employees entirely in company money that can only be spent at the company store?

    Because that’s a limit which, in their view, meets the exceptions above. So is the provision that you can’t sexually abuse your staff, and the rule that you can’t stick your call center in an uncleaned nuclear storage facility just because the rent is low.

    Look, there’s a broad set of questions:
    1) Is this a good thing for the users?

    2) What are the costs?

    3) If the users can theoretically forgo the benefits, is it enough of a good thing to make the government responsible for ensuring that the users don’t do so?

    4) If the users can theoretically pay the costs on their own (albeit bearing the harm of doing so) is it enough of a good thing, or are the costs high enough, to make the government responsible for transferring those costs to someone other than the end users?

    5) Is it enough of a good thing to make the government responsible for directly providing the benefit, or directly paying the costs, on its own?

    It’s pretty obvious that “healthy and happy people” are an enormous benefit. #1 isclear.

    It’s a lot less obvious that employment is the proper path to get that benefit; #4 is not especially clear. I’m OK with the ACA (I’d be more OK with single payer, i.e. #5) but it seems more than a bit strongheaded to pretend that this isn’t an issue with two pretty valid sides.

  9. 9
    Copyleft says:

    The notion that corporations should enjoy Constitutional rights is a poisonous one and should be opposed at every opportunity. They’ve already trampled on the concept of free speech (which they equate to money), and now they’re pushing for the right to discriminate based on religion? No way. Never. Corporations should have no rights whatsoever–only privileges, under strict governmental control.

  10. 10
    gin-and-whiskey says:

    mythago says:
    March 4, 2013 at 7:50 am
    DoucheCanoes LLC has been run by members of a white-supremacist church since, like, forever, and has gotten big enough that it can now offer health insurance. The owners decide that they want to limit the insurance so that it does not cover fertility services to interracial couples, nor contraception to white couples, because they deeply and sincerely believe that while the law forces them to hire Those People, it shouldn’t force them to subsidize miscegenation or the genocide of the white race through attrition, as those things are sins.

    We are all on board with this exercise of their religious freedom, right?

    Well, as Copyleft correctly noted, the fact that they’re a business entity (which only exists by social agreement) suggests that we can make the social agreement have any terms that they want.

    And as I’ve said, even the people who lean heavily away from government intervention still tend to believe that there are some exceptions: what you describe would fall into those exceptions.

    But whenever we have these discussions, people bring up racism as a sort of “see? Look at THAT!” kind of thing. I don’t get why. Racism is just a horrible trait that some people have, along with other horrible traits. All racist acts should be discouraged, along with other horrible acts. But not all horrible acts should be made illegal, whether or not they involve race: it doesn’t make them less horrible, though.

    I know two local store owners, each of who have about 3 employees. If one of them refuses to hire anyone other than Christian white citizens of European descent and one of them refuses to hire anyone other than Muslim Arab immigrants from Iraq, those decisions are simuultaneously
    a) racist;
    b) inappropriate; and
    c) not within the scope of things that the government should necessarily take action to prevent.

  11. 11
    RonF says:

    “The insurance she works for belongs to her, not to her bosses”

    Really? Every company I’ve every worked for – including my current employer – gives me a set of specific insurance plans that I can choose from, each with it’s own limitations. And that’s an improvement from the previous situation, where I was only offered one (with the only options being single, married ormarried with dependent children a.k.a. “family”). This is great! I’ll just trot down to HR and tell them that it’s my insurance, not theirs, and they have to cover whatever I want.

    “Under this philosophy, why can’t companies pay their employees entirely in company money that can only be spent at the company store?”

    Ah, who says they can’t? Of course, you could refuse to go work there and the company would collapse under a lack of employees. Really, I’m curious. Is there a law that forbids this?

  12. 12
    Robert says:

    “I say this because otherwise everyone has a first amendment right to refuse to say whatever they want, without regard to what they’ve said in the past. It wouldn’t matter if we had been publishing “communism sucks!” broadsheets every day for the last 25 years, we have an absolute first amendment to refuse to publish it tomorrow, and there’s nothing the government can do about it. Unless they’ve repealed the first amendment, in which case, we can’t appeal to it.”

    I have to say that on second reading, this confuses me more than it did the first time around.

    Are you saying that because there’s an individual right to freedom of speech (which of course includes freedom from obligatory speech), that the law wouldn’t apply to you, even though you have a corporate form of organization? In that case, why do you think that the RFRA doesn’t apply to the Grotes?

    Or are you saying that because your conduct is expressive, that your form of organization does not matter and its your individual rights that control? In which case, what’s the defining line and what privileges expressive conduct over non-expressive?

  13. 13
    Another Alex says:

    Ah, who says they can’t? Of course, you could refuse to go work there and the company would collapse under a lack of employees. Really, I’m curious. Is there a law that forbids this?

    The minimum wage. I don’t see a reason why they couldn’t pay anything above that in comics vouchers though.

    I don’t think the legal argument has much generality. A better headline would be “Just Because [This] Company Is Owned By Christians Doesn’t Mean [This]Company Has Christian Beliefs”. Whatever the facts of this case, there’s nothing stopping a company from writing religious goals into its articles and invalidating Rovner premise.

    The insurance she works for belongs to her, not to her bosses; and they have no right to tell her that she can only use her own insurance in ways that their religion approves of.

    The argument’s whether the government should make Grotes provide contraception as part of its insurance package at not cost. It’s nothing to do with how employees use the insurance. Even if there were all good Catholics and none of them would even think about making a claim for contraception, the government would still be making Grotes pay and they’d still be bringing the case.

  14. 14
    Robert says:

    Another query re: the judge’s “y’all aint doing nothing religious” line of argument.

    It’s an established fact that providing birth control coverage, sterilization, and abortion services cost significantly less than providing childbirth-related services would cost, yes?

    It’s not an established fact since every pool of employees will have demographic variation, but it would be a reasonable supposition that employees at the Grote companies would rather have an insurance plan that covers birth control etc., than one that does not, yes?

    The Grote companies self-insure, yes? Meaning that they pay their own actual costs of covered medical care for their employees; a birth costs them $20000 or whatever the going rate is these days at their local hospital, cash money, not an insurance payout.

    So, prior to the ACA, they were choosing the MORE expensive option, that provided their employees with LESS satisfaction. Now, a theory of managerial malevolence could certainly explain the second, but wouldn’t explain the first; they could have gotten even more evil for the dollar by not providing care at all. So apparently they a) want to provide care, but b) do not regard the fiscal rationale for what kinds of care to provide as being dispositive.

    So I’m wondering: why, in the view of Amp or Judge Rovino (if she pops in), did they have those restrictions in place to begin with?

    It can’t be religion. The judge said the company didn’t do anything for religious reasons, it was clear.

    So what’s the secular purpose behind their pre-existing policy?

  15. 15
    Sebastian H says:

    “Republicans believe that employers need protection from their slutty, filthy, non-Christian employees doing something the employers wouldn’t approve of with their compensation.”

    No, actually they believe that they themselves shouldn’t be forced to directly pay for things they vigorously and religiously disagree with. In democratic governmental structures, the traditional way of promoting tolerance goes as follows: we understand that members of minority groups have strongly held beliefs about things, we try to avoid forcing them to engage in direct support of those things by collecting taxes, pooling the money, and then voting on how the money gets spent. This creates political space and distance for those who say oppose the Iraq war, don’t support torture, think abortion is wrong, etc.

    What we don’t do is force people to directly donate money to the Society for the promotion of more settlers in disputed Palestinian territories or whatever, even though the US as a nation collects taxes and supports Israel under both hawkish and dovish Israeli administrations.

    We get enough threats on the good ways that government structures can work from the right. I don’t see how attacking them from the left is helping us. Work with the tolerance structures of the government. Don’t make arguments to destroy them in general just because you hope to win a narrow point on birth control pills that can be won easily on other grounds.

  16. 16
    Ampersand says:

    No, actually they believe that they themselves shouldn’t be forced to directly pay for things they vigorously and religiously disagree with.

    They are not paying directly for birth control. They are paying their employees with insurance – and typically, they’re not even paying for all of the insurance themselves, but splitting the cost with employees – which some of those employees may or may not go on to use to help them purchase birth control.

    There is no “direct” purchase here. That’s a lie that conservatives tell because they want religious employers to have the power to shove their religious beliefs down their employee’s throats. There is no difference between an employee handing a worker a paycheck, which the worker uses to buy X, and the employee handing a worker an insurance policy, which the worker uses to buy X. In both cases, the worker is getting payment owed to them for the labor they’ve performed; and in both cases, it’s wrong for the employer to try and dictate the worker’s decisions on how the payment is used.

    * * *

    By the way, let’s remember, the primary reason employers want to pay part of employee’s wages with insurance, rather than just paying them a higher amount in cash and letting employees find their own insurance, is that due to the different ways cash and insurance are taxed, the company saves money by offering insurance.

    That’s what’s really at issue here. With Obamacare, as of 2014, any employer could decide that they’re not going to offer health insurance anymore, and instead pay the government something and let their employees choose their own plans on the Health Exchanges. They could then wash their hands of the whole thing, and have not even the indirect involvement they currently have.

    So no one is being “forced” to pay their workers with health insurance, at all. There’s a very plausible way for employers to get out of the insurance-providing business altogether (and imo, that can’t happen too soon).

    But they’d make less money that way. And that’s what they really can’t abide.

  17. 17
    Ampersand says:

    Ron F:

    “The insurance she works for belongs to her, not to her bosses”

    Really? Every company I’ve every worked for – including my current employer – gives me a set of specific insurance plans that I can choose from, each with it’s own limitations.

    The last company I was employed by gave me three payment plans I could choose from for my money wages – they could auto-deposit the money into my bank, or they could pay me by check either once every two weeks or once a month. I also had other options, like asking for advances now and then.

    But even though they gave me a menu of options for how I could receive the money they owed me, and I had to choose from that menu (they wouldn’t have been willing to pay me in cash, for instance), the money they paid me was mine. Not theirs. And they had no right at all to tell me how I used the money.

    The same thing is true of your situation. Your employer gives you a menu of options to choose your insurance from – but it’s still your insurance, not theirs. You’re the one who is being covered, not your boss, and you’re the decision-maker your doctor will talk to, not your boss.

    “Under this philosophy, why can’t companies pay their employees entirely in company money that can only be spent at the company store?”

    Ah, who says they can’t? Of course, you could refuse to go work there and the company would collapse under a lack of employees. Really, I’m curious. Is there a law that forbids this?

    The minimum wage law effectively outlaws paying employees purely in company money (also called “scrip”). Some companies do pay partly in money and partly in scrip (in the form of gift cards); I think the legality of that varies from state to state.

    In Mexico, until recently, Wal-Mart was trying to pay some employee wages in Wal-Mart gift cards. I think that was outlawed there recently, though.

    Back when it was legal to pay in scrip, by the way, things didn’t work out the way you imagine. Mining and lumbar companies didn’t “collapse” for lack of employees; desperate workers with little negotiating power, and many miles from alternatives, took the company scrip and inevitably got screwed over for it. Contrary to what conservatives believe, in the real world workers can and do get screwed over, and the unrestricted marketplace doesn’t magically make everything better.

  18. 18
    Elusis says:

    In democratic governmental structures, the traditional way of promoting tolerance goes as follows: we understand that members of minority groups have strongly held beliefs about things, we try to avoid forcing them to engage in direct support of those things by collecting taxes, pooling the money, and then voting on how the money gets spent. This creates political space and distance for those who say oppose the Iraq war, don’t support torture, think abortion is wrong, etc.

    But we also have established corporations, LLCs, etc. to avoid forcing people to equate the liabilities of their business entity with their own personal liabilities. This creates economic and legal space and distance so that if your widget factory explodes and burns down the local elementary school, the school corporation can’t come after your house and your kids’ college fund.

    So it seems to me that the strongest argument is the one made by the judge above: “the owners do not provide the contraception coverage, the company does. Even in self-funded health plans like the ones offered by Grote Industries, those premium payments come out of the company’s bank account and not the owners. The Grotes are simply not at liberty to “treat the company’s bank accounts as their own” unless they are also comfortable waiving the personal liability protections afforded to them under corporate law as well.”

  19. 19
    Ampersand says:

    What Elusis said. :-)

  20. 20
    Robert says:

    If that argument (company != owner, therefore owner’s convictions irrelevant) is powerful, why did the dissenting judge find it necessary to state (however falsely or indefensibly) that the company’s behavior showed no sign of the Christian grounding of the owners?

    You guys are kind of all over the map here.

  21. 21
    Ampersand says:

    Actually, Robert, her dissent didn’t state that – you’ve made the mistake of responding to a blogger’s loose summary of her dissent, rather than the words of the dissent itself.

    And judges approach cases with multiple arguments all the time. “Gee, your argument A must have no power, otherwise you wouldn’t bother making an argument B” is a ridiculous argument to make. Actually, if two good arguments lead to the same conclusion, then that conclusion is on even firmer ground.

    Here’s the passage from her dissent I believe you’re referring to:

    Grote Industries (by which I mean to include both Grote Industries, LLC and Grote Industries, Inc.) is a secular, for-profit business engaged in the manufacture of vehicle safety systems. So far as the limited record before us reveals, it has stated no religious goals as part of its mission, it does not select its employees, vendors, or customers on the basis of their religious beliefs, and it does not require its employees to conform their behavior to any particular religious precepts. As such, I cannot imagine that the company, as distinct from the Grotes, has any religious interests or rights to assert here.

    She then goes on to contrast Grote with other private corps that do have religious interests to assert (citation gibberish omitted by me):

    ….there do exist some corporate entities which are organized expressly to pursue religious ends, and I think it fair to assume that such entities may have cognizable religious liberties independent of the people who animate them, even if they are profitseeking. See, e.g., Tyndale House Publishers, Inc. v. Sebelius (for-profit publisher of Christian texts, owned by not-for-profit religious foundation and related trusts which directed publisher’s profits to religious charity and educational work); see also Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos (1987) (Brennan, J., concurring in the judgment) (“it is . . . conceivable that some for-profit activities could have a religious character”). Indeed, there is a regulatory exemption from the contraception mandate for religious employers. But it appears to be common ground among the parties that Grote Industries does not meet the criteria for such an employer.

    She also fully acknowledges that the Grotes have taken the action of having their company exclude contraceptive coverage because of their religious beliefs:

    Although Grote Industries is not a religious employer, the Grotes aver, albeit without elaboration, that they seek to run the company in a manner that reflects their religious beliefs. Whatever else that may mean, I assume that it explains why, to date, Grote Industries’ self-funded health plan has not included coverage for contraceptives. Requiring the company to include coverage for contraceptives forces the Grotes to operate the business in a way that deviates from the Catholic values that they otherwise endeavor as business owners to observe.

    But in this respect the Grotes are no different from any number of business people who must, in compliance with a variety of statutory mandates, take actions that may be inconsistent with their individual religious convictions.

  22. 22
    Robert says:

    You’re right about the arguing in the alternative bit; I was thinking from the plaintiff’s point of view (where doing that is death) rather than the judge’s view, where as you say it’s part of the job.

    However, she is trying to game things with the tests she wants to apply.

    “it does not require its employees to conform their behavior to any particular religious precepts”

    Are private secular employers ALLOWED to require employees to conform their behavior to particular religious precepts? I don’t believe they are; they are usually free to discriminate on the basis of such behavior, but they cannot compel it. (Dan Cathy can be delighted to see me at church twice weekly and again for Sunday school and Bible study, and promote me to district manager, but he cannot require me to come to church etc.) The individual employees’ own religious liberties prohibit such compulsion; compliance with policies, possibly, but even there there’s wide latitude. Jews get to take Rosh Hashana off, even at MuslimCorp or Atheists Inc.

    So the judge is asking for evidence which it would be illegal for the plaintiffs to be able to produce. Instead, the evidence of the Grotes’ religious convictions comes in the observed evidence of their specific uses of the managerial discretion which they have as owners: are they handing out vouchers for the local strip clubs in the pay packets, or are they putting contraception restrictions in the health care plan?

    The dissenting judge seems to be carefully crafting her criteria in order to be able to exclude Grote’s obvious and blatant exercise of their religious prerogatives from counting as religious. The blogger’s sloppy characterization is sloppy only syntactically; semantically, voiding the Grotes’ religious exercise is exactly what she does.

    The ‘other businesses are run by people who are asked to comply with statutes that violate their religion’ bit is non-persuasive. What other businesses? What statutes? Which convictions? It was an attempt to make sure that this class of people was as tiny as possible that partially motivated RFRA in the first place. I cannot think of any companies in this position – you got any on tap?

    As G&W astutely broke out, there may be causes so compelling that the state must trample on religious conscience, but there is a whole cascade of tests that ought rationally be applied to such efforts. Making sure that people with jobs don’t have to pay for their own birth control pills, when that strongly conflicts with someone else’s direct Constitutional right, seems to fail those tests by a pretty large margin.

  23. 23
    Sebastian H says:

    And if we were doing the right thing and collecting taxes and voting on where the money went instead have having purely executive rules on the subject, we wouldn’t be getting into this mess. If you want universal birth control access, have Congress provide it. Or fund a charity to do it. Forcing people who don’t want to pay for someone else’s personal contraception due to silly religious objections isn’t a close second option. It is a bad precedent against how tolerant communities should act. Work and personal contraception aren’t linked at all (like say work and overtime rules).

  24. 24
    Grace Annam says:

    Sebastian H:

    Work and personal contraception aren’t linked at all (like say work and overtime rules).

    Spoken like someone with no risk of getting pregnant.

    Get pregnant when you don’t want to and you’ll learn just how closely your work and your personal contraception are linked.

    Grace

  25. 25
    Robert says:

    Get beaten up by the Klan when you don’t want to and you’ll learn just how closely your work and race relations are linked…to wit, not at all, but things that happen in one area of life very often affect things in other areas of life, sometimes drastically.

    That doesn’t mean my work needs to pay my anti-Klan insurance.

  26. 26
    mythago says:

    gin-and-whiskey @10: I don’t get why you don’t get it. The claim is that business owners should be able to provide health-care policies that exclude coverage for things that offend the owners’ religious beliefs. If that is so, then the claim is just as valid for the religious belief “race-mixing is genocide and a violation of God’s laws” as it is for the religious belief “contraception is a violation of God’s laws and may be murder.”

    Robert @25: My kids’ dental care is pretty unrelated to my work, yet nobody thinks it weird for my employer to offer dental coverage. If the real objection employers had to covering contraceptives was “that’s not related to work”, they’d be making a ton of other exceptions, and aren’t.

  27. 27
    Robert says:

    Your employer isn’t obliged to provide that coverage. Unlike, say, rules about overtime pay (which are tightly connected to both your workplace and to a Constitutionally-enumerated government power). Just as, in a more sensible age, your employer wasn’t being mandated to pay for birth control.

    The state has a good claim to legitimate jurisdiction over even third-party decisionmaking, when the decisions being made go directly to the regulation of commerce. It’s legit for the state to set a minimum wage, to make rules about overtime pay, to establish various tax treatments for different categories of payroll deductions, and so forth. Even hardcore libertarians, though they would argue the state ought NOT to get into the weeds on many of those questions, won’t say that they aren’t the state’s business. It’s right there on the parchment; regulation of commerce.

    The less tied that decisionmaking is to a core power of the state, the less legitimacy it has and the more scrutiny needs to be applied to particular regulations, and the more weight we begin to assign to the individual rights side of the equation. Your religion tells you that you’re not allowed to submit your truck to inspection at a weigh station? Well, that’s a shame, I guess you’re not in the interstate trucking business anymore; core governmental purpose trumps individual freedom. Your religion tells you that you’re not supposed to work on Sunday? OK, you’re probably good on that unless you’re applying for the contract to run a toll road – if you are, too bad. If it’s your own chicken restaurant, you can be open whenever YHWH wants you to be open, man.

    So how closely is requiring birth control to be covered in employer-provided health care plans aligned to core governmental functions? Well, there’s the Birth Control article…no, actually not…well surely the Free Hormone Pills for Chicks clause…oh, no, they took that out. Hmm. Doesn’t seem all that aligned at all.

    The state is perfectly within its ambit to *encourage* birth control coverage, say, through a tax credit. It’s perfectly within its ambit to rule that, if birth control coverage is provided to white employees, it also be made available to black people. It’s perfectly within its ambit to create a public benefit entitling the citizens to “free” contraception on the public nickel.

    It’s well outside its ambit to rule that, too bad for your conscience, you have to provide certain forms of health care, in cases where there is a recognizable and distinct conscience and that conscience is objecting. Where that conscience does not exist, the state can more or less run roughshod, however foolish the exerise may be – but where the conscience DOES exist, it is Kryptonite to the governmental Superman, when the government is meddling far afield from its core functions.

    The government is meddling far afield from its core functions.

  28. 28
    mythago says:

    That’s all very libertarian of you, Robert, but backwards. If the government has the right to require employers to pay for health insurance, then on what basis may an employer refuse to pay for certain coverage? If the answer is “genuine religious beliefs”, well then, the devout followers of the Church of Mighty Whitey have every right to tell interracial couples to pay for their own goddamn C-sections. If the answer is “anything not related to work”, then I guess what we really have is workers’ comp.

    If, instead, the answer is the government should not be involved in this at all, then the debate about birth control pills is academic. In a more sensible age, my employer wasn’t being mandated to pay for emergency care if I got hit by a bus.

  29. 29
    Robert says:

    ” If the government has the right to require employers to pay for health insurance, then on what basis may an employer refuse to pay for certain coverage?”

    The freedom of religion clause, Constitutionally, and RFRA (among other laws, I imagine) by statute.

    Your “what about whitey???” counterexample would be totally on-point, and you’d be right, if it weren’t for the 14th amendment. People of all races generally, and interracial couples in your specific, if stupid, example, are entitled by the 14th amendment (and its associated jurisprudence and legislative buttressing) to broadly equal treatment under the law, even by private actors. That fundamental right balances out against religious freedom, so you cannot use a religious exemption to get out the requirement for facial neutrality between races.

    Why am I having to explain this to you? Is this the first time the Federal government has attempted to make law that requires businesses or people to behave in certain ways, and had those businesses or people stake claims of religious exemptions to get out of it? It plays out pretty much the same every time: the people with strong claims who aren’t going to be inflicting great harm on others, or violating others’ settled rights, and where there’s some other way for the government to reach its objective, are allowed out. The people who are just making shit up or whose legitimate claim would inflict a larger harm on someone else’s settled rights, or where there is just absolutely no way for the desired good thing to happen without it happening this way, are not.

    As it happens, there is no fundamental right to free birth control, the net harm to a relative handful of employees who have to (continue to) buy their own contraception is trivial, the net harm to employers who would be required to either violate their conscience or go out of business or radically restructure their enterprises is enormous, and the government has plenty of other ways to provide the desired service to the target population without compelling private parties.

    It’s pretty much a no-brainer.

  30. 30
    Sebastian H says:

    Yes we get it. Minority rights are for people YOU like. Conscientious objection is for moral values YOU like. Not for the ones you don’t like. Tearing down the pluralistic way of dealing with conscientious objection couldn’t possibly cause problems for you later, because…..

    Pluralism and tolerance are useful values to promote when people strongly disagree. Not ramming things down people’s throats when you don’t have to is good. You don’t have to ram it down people’s throats in this case. So you should ask yourself why you’re insisting on it. Wanting to force people to your will just because you want them to obey you isn’t a value I’m going to the mat for.

  31. 31
    Ampersand says:

    Sebastian, which comment are you responding to?

  32. 32
    mythago says:

    Why am I having to explain this to you?

    Explain what? That you believe there is an absolute Get Out Of Obeying The Law Free card because of the First Amendment (you’re thinking of the Establishment Clause, btw) and some provision or other of the RFPA, but if you use your Fourteenth Amendment Attack, it’s super effective? That there is no Equal Protection argument based on anything other than race – so if an employer wants to avoid paying for a medical procedure or treatment that just so happens to be used only by females, why, we’ll get all Scalia and say that’s OK because at least it’s not racial?

    Of course it’s not the first time an employer has tried to pull the “but but my religion” card. It’s just that most people call that bullshit right up until slutty slut sluts are involved, and then OMG but what about their religious freedom?!

  33. 33
    Robert says:

    There are Equal Protection arguments based on things other than race. Gender is one of them, but this isn’t a gendered discrimination. The Grotes aren’t saying “vasectomies for men no problem, but nothing for the chicas”. They’re saying no to a whole class of procedures and treatments which are used by both genders.

    I believe that I’ve made it extremely clear that I do not believe in an absolute ‘get out of the law’ power; I have spent several lengthy posts talking about all the ways in which the power doesn’t apply, or the circumstances under which it can be overridden.

    The “but but my religion” card has indeed been played many times. You seem well aware of the times when it hasn’t flown, but are in either denial or a state of ignorance as to the many times that it has – and the state interests at stake in those cases have been vastly more urgent than a few people with jobs having to continue to pay for their own contraception. People have been excused from *combat duty* during wartime drafts because of their religious convictions – yet you think it a horrific novelty that they might be excused from paying for your birth control?

    The religious freedoms we enjoy as Americans do not give absolute license for individual rejection of law, and no thoughtful advocate for those freedoms has ever claimed such an absolute mandate. You are falsely claiming an absolute mandate, because an absolute mandate is much easier to argue against than is an observation that we must balance competing interests, and unless you’re completely mad, you know that “we demand you buy our contraception” is an extraordinarily uncompelling interest.

    Rather than an absolute power, though the freedom of religious exercise is profound, it is bounded by the other freedoms that we enjoy. You have, for example, a right to privacy as elaborated by latter-day courts, that gives you a right to utilize whatever contraceptive modality you wish, and gives me the same right – but neither of us may, as a matter of right, be forced to pay for the choice of our employees if that choice is genuinely grievously in conflict with our religious beliefs. Were the Grotes attempting to say “none of our employees may use birth control – its NFP or the highway!” the balance of rights would be starkly skewed in the opposite direction.

    But they aren’t. They’re simply saying that it is against their beliefs to pay for certain things, and that they should be excused just as all of the other people and organizations making that claim have been excused. The Administration apparently knows what you do not – the tradition and law in this country is that things that are not critical to the state (and even a few that are) are subordinated, when possible, to the individual religious conscience of the citizens to which the law applies. They negotiated waivers and exemptions to the law for the vast majority of the entities asking for it – as is fairly typical – and erred only in drawing the line too restrictively.

    It’s not the end of the world; they’ll lose in court, as they lost here, and in the end will strengthen the principle – not the absolute rule, just the principle – that individual religious conscience is very important and not to be trifled with.

  34. 34
    Grace Annam says:

    Robert:

    …but this isn’t a gendered discrimination. The Grotes aren’t saying “vasectomies for men no problem, but nothing for the chicas”. They’re saying no to a whole class of procedures and treatments which are used by both genders.

    It’s not merely an access problem. It’s also an impact problem. This is like those marriage equality opponents who argue that gay men can marry whatever woman they like, just like straight men, so it’s totally equal!

    The medical hazards of pregnancy and childbirth, the irreversible changes to the body even for an “easy” pregnancy – these are impacts inevitably borne by the person who is actually pregnant. The neonatal care – this is an impact which falls FAR more often and more completely on the person giving birth.

    Now, before you try to reply by embedding in a wall of words a hypothetical example from the bleeding, radioactive edge of the conceivable spectrum: I’m not suggesting that disparate impact should be the entire analysis. But it should damn well be a significant part of it.

    Anatole France put it better than I ever could:

    La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain.

    He also said, “On devient bon écrivain comme on devient bon menuisier: en rabotant ses phrases.” Which is a lesson we might both profit from learning, you and I.

    Grace

  35. 35
    Sebastian H says:

    “The medical hazards of pregnancy and childbirth, the irreversible changes to the body even for an “easy” pregnancy – these are impacts inevitably borne by the person who is actually pregnant. The neonatal care – this is an impact which falls FAR more often and more completely on the person giving birth.”

    How does this explain why your employer should pay for your contraception?

    This might explain why the government should pay for it. But that isn’t the same as explaining why the government should force your employer to pay for it. Why are we linking their employment of you with your sex life?

  36. 36
    Robert says:

    That is an outstanding argument for why birth control must be legal and accessible, and no argument at all for why paying for it needs to be mandated as an employer responsibility to the point that the employer’s right of conscience should be casually disregarded. There is not the slightest shred of evidence that the female employees of Grote – who have been paying for their own contraception at least from the date of their employment with the firm – cannot access or afford birth control. It isn’t that disparate impact on the topic doesn’t point to a heavier burden for women – it’s that the disparate impact isn’t relevant to the question of who should pay. Men suffer worse from kicks to the crotch, but that doesn’t mean my boss should have to buy me a cup.

    The apocalyptic, without-the-pill-women-die line of argument runs into a pragmatic flaw, at least for those attempting to argue the Administration’s position rather than a hardcore, free-birth-control-for-everyone line: hundreds or thousands of employers, employing hundreds of thousands or millions of women, have already been exempted from the coverage provision, voluntarily without any need for legal action on their part, just a request, or even pre-emptively in the drafting phase of the legislation.

    That is absolutely fatal to the “everyone MUST do it” line of thought. Everyone quite obviously must NOT do it; lots of people are excused. Therefore, being excused from the law is a possibility. What are the criteria for being excused? Why, religious belief.

    The administration *already believes* that religious belief is sufficient, in and of itself, to override the supposedly desperate need of women to have someone else pay their $20 monthly bill for birth control. The argument is not “can people be excused” but rather “does this entity pass the test of having a sincere religious belief”.

    You’re obviously free to think that the argument should be dragged back up the hill and that the administration was wrong in its wall-of-waivers – but that’s a whole different conversation.

  37. 37
    Denise says:

    Whatever happened to the argument that it’s not the employer buying birth control, but the employer providing access to a group health coverage plan as part of an employee’s compensation and that plan covers birth control? It was mentioned further upthread and then it just kind of disappeared, and now we’re back to framing it as my boss buying me birth control pills.

    I would agree that my boss has a legitimate concern vis a vis violating his or her own personal conscience. But the validity of that claim diminishes when we’re talking about a compensation package that the employer chooses to provide to his or her employees and the employees may then choose to use that compensation in ways that the employer disapproves of.

  38. 38
    Robert says:

    Advocates of the mandate like that argument because it wraps a layer of obfuscation around the source of the funds; put enough layers on, and the moral responsibility felt by the employer dissipates and they stop kicking up a fuss. But there’s a difference at the very root between requiring an employer to pay for something they find objectionable, and requiring an employer to pay employees who may themselves choose to buy something the employer would find objectionable.

    In the end, it’s not much of an argument. If it has any validity, then why do churches and religious schools and religion-focused companies get the exemption? Answer: because buying things their religion forbids is objectionable to them, and it doesn’t matter how many layers of administrative abstraction are used to obfuscate who is buying what.

  39. 39
    Grace Annam says:

    Sebastian H:

    How does this explain why your employer should pay for your contraception?

    It doesn’t, unless you accept that this can be argued as an Equal Protection issue on the basis of gender.

    Robert:

    That is … no argument at all for why paying for it needs to be mandated as an employer responsibility to the point that the employer’s right of conscience should be casually disregarded.

    Didn’t say it was.

    YOU argued that IF someone tried to make an Equal Protection argument on the basis of gender, that would be wrong. I disagreed.

    Specifically, you asserted that denying access to ALL birth control is not gendered discrimination, because it denies EVERYONE access. I pointed out that access is not all that matters, because the playing field doesn’t start level; some people will feel the impact of that lack of access more than others.

    You then dismissed my argument by claiming that it did not speak to the larger issue in the general discussion. Fine. I didn’t intend it to. Since I excerpted exactly what I was replying to and thereby made the context reasonably clear, I don’t see the relevance of your contention that my point is not responsive to a different issue.

    Grace

  40. 40
    Robert says:

    My understanding of equal protection cases, which I will admit is purely lay, is that disparate impact doesn’t support an equal treatment claim when the law is genuinely facially neutral (and not just drawn in a way that looks neutral but is really an attempt to discriminate by statute). Almost everything is going to have a disparate impact in some way or another.

    The reason this was brought up is that Mythago is under the impression that religious conscience clauses would allow white supremacist churches to avoid civil rights law; the only reason equal protection entered the conversation was the attempt to explain to her why it didn’t work that way; we have a rich list of religious exemptions to various statutes, none of which end up buttressing the Church of Idaho Skinheadedness, Inc., against the civil rights laws.

  41. 41
    Another Alex says:

    There is no difference between an employee handing a worker a paycheck, which the worker uses to buy X, and the employee handing a worker an insurance policy, which the worker uses to buy X.

    But the validity of that claim diminishes when we’re talking about a compensation package that the employer chooses to provide to his or her employees and the employees may then choose to use that compensation in ways that the employer disapproves of.

    Do US company health policies really work like that? If you use contraception on your insurance, and you then get cancer, are you less entitled to anti-cancer drugs because you spent some of your insurance on contraception? I was under the impression the decision was more like giving everyone with a policy a free contraception voucher, which they could choose to redeem or not at their discretion.

  42. 42
    Elusis says:

    I’m still waiting for Robert or RonF or one of the other supporters of the Grotes to explain why they should get to have a legal separation between their assets and the company’s liabilities, but then erase that separation when it comes to their beliefs and the company’s “beliefs.”

  43. 43
    Robert says:

    I could lecture you on the topic (“Robert? Lecture? Never!” exclaimed a shocked Alas community) but you would probably get more out of it via a Socratic approach.

    Why do the Grotes (or anyone who owns a company like this) get to have a separation between their assets and the company’s liabilities, period?

  44. 44
    Myca says:

    I could lecture you on the topic (“Robert? Lecture? Never!” exclaimed a shocked Alas community) but you would probably get more out of it via a Socratic approach.

    This is super condescending.

    —Myca

  45. 45
    mythago says:

    There are Equal Protection arguments based on things other than race. Gender is one of them, but this isn’t a gendered discrimination.

    Ah, this takes me back to Justice Rehnquist’s argument that pregnancy discrimination has nothing to do with men, because the law doesn’t give any different treatment to pregnant men. (And no, he wasn’t thinking about transmen.)

    Your understanding isn’t lay, Robert; it’s just incomplete. Religious exemptions are not a kind of rock-scissors-paper, where Catholic views on contraception beat secular mandates but secular mandates beat racism. When someone is asserting that they don’t have to do X because their genuine religious beliefs prohibit it, we don’t simply look at X and say “yes, but racism is bad so no”. We have to balance their religious freedom against the State’s interest in making sure they do X anyway. For example, we all agree that a company should not be allowed to refuse to hire black employees, but the government cannot force the Church of Mighty Whitey to perform interracial weddings, and we get into a gray area if the Mighty Whitey Soup Kitchen only hires white servers.

    In other words, Robert, the problem is that “people shouldn’t have to pay for things that offend their religion” is incorrect. We make people do that all the time. The question is whether, on balance, the thing we are trying to make them do is a strong enough state interest – something we don’t want to excuse someone from doing – that they should be exempt. The Amish may not have to send their kids to school past eighth grade, but if The Man, Inc. doesn’t want to hire ladies because they have Devil cooties, well, too bad. You should probably look at the Catholic Charities case for a discussion of trying to find that balance between religious principles and secular mandates. But, again: it’s a balance. Not an absolute rule or a Pokemon battle.

    (Also, can we quit pretending that the Grotes are paying for anyone’s birth control? The Grotes’ company is offering compensation in the form of subsidized health insurance, as opposed to straight cash that the employee could then use to buy her own health insurance. They do this because a) it helps attract employees and b) that is a form of compensation that is untaxed, refer back to (a). The Grotes do not have the right to deduct the cost of an employees’ IUD from her paycheck, nor to require her not to use any of her paycheck for contraception as a condition of employment. In essence, they are trying to control how an employee spends her money.)

    Re the issue of liability, a corporation is an entity formed to protect the owners from personal liability. Owners do not have to run a business that way. If the Grotes want a sole proprietorship, such that they equal the company and it thus IS a reflection of them and their values, mazel tov. But they can’t pretend that the company is them when it comes to the no-sluts part, but isn’t them when it comes to the can-we-sue-your-asses part.

  46. 46
    Robert says:

    It’s not intended to be condescending; questions about ‘why do we have such-and-such policy about business organization’ tend to answers that are incomprehensible to one, if one doesn’t arrive at the answer oneself. Then it’s a-ha, I get it, and on one goes with life.

    OK, Mythago, you’ve finally come around to articulating what I’ve been articulating the whole time – apparently badly. ‘To make people do X even if its against their religion requires a very compelling government interest’ and ‘people have a right not to do X if its against their religion, unless there’s some very compelling reason to make them’ are saying functionally identical things.

    And that being said, OK, what is the compelling state interest in these cases? Answer: there isn’t one. Everyone who has applied for a religious exemption and had a clear religious connection has been exempted. Grote was a marginal case because the company itself doesn’t do religious stuff – and now the court, correctly, has clarified that the company’s mission and activities are not the relevant measure, the religious beliefs of the company’s owners are the relevant measure. Grote and the other company in the case join the churches and the religious schools and the charities in the big pool of folks for whom ‘my religion says I don’t have to pay for this’, and the judiciary agrees.

    The state can mandate a particular type of health coverage; that’s a legitimate exercise of its authority to regulate this type of commerce. People who have a religious objection are, increasingly clearly, completely off the hook for it, because there’s absolutely no compelling state interest in mandating that coverage. (The courts aren’t yet ruling that; rather, they are ruling that it seems so likely that the churches and Grote and all the rest will prevail at trial, that they are granting injunctive relief to excuse them from the statute in the meantime.)

    If the Grotes aren’t paying for anyone’s birth control, then what’s the suit about? The court seems to think that they’re paying for birth control, whether through direct purchases of truckloads of estrogen pills or via some more indirect method. The Grotes seem to think they are. The churches and the schools and the other businesses all seem to think they are. The administration seems to think they are. If there is a legitimate and clear (and given your ‘let’s stop pretending’ phrasing, it must be extraordinarily clear to all right-thinking people) total demarcation between the institutions and the objectionable services, then why are so many millions of people, up to and including the President of the United States, ‘pretending’ that it isn’t so?

    The Grotes, by the way, are not providing a subsidized healthcare insurance plan. They self-insure, meaning that they pay for everything directly.

    Re: corporate liability: (Elusis, if you actually do want to learn why we do things that way through a self-reflective process, look away! Look away now!!!!!)

    No, it doesn’t work that way. Yes, LLCs and similar forms of organization create a corporate veil that shields the individual owner from liability in excess of the value of their ownership of the firm. (If BobCo, LLC is worth $100 million and I am a half-owner of the LLC, then my personal liability is no more than $50 million no matter what BobCo does. Let’s burn down some gold-plated orphanages!)

    But managerial control of BobCo, and all the discretionary decisionmaking (tons) that any business organization requires, remain in the hands of the owners, or whomever the owners have selected as managers. BobCo can continue in its line of business (selling arson services to heavily insured but financially overstretched orphanages) or become a provider of PG-porn-lite to Mormon hotel chains or conduct legal education seminars on streetcorners in exchange for donations. We – that is to say, the management of the firm, which is very often the owners of the firm, and is so in the case of Grote – retain all of our individual rights and may express that, within the parameters of the law, in the management of our company.

    If we’re Buddhist and decide this means spinning off our lucrative laser weapon development division, or we’re Catholic and decide that we shouldn’t fund any abortions, or we’re Jewish and so we intend to dominate the open-on-December 25 Chinese restaurant market – that’s all good. Someone has to exercise this discretion; as a moment’s thought makes clear, there is not really any way to implement having decisions made by someone else. Who SHOULD decide the Grote Industries contraception policy? You? Me? The gummint? But none of us would have had any power to do that a year ago, if Grote had decided to START offering birth control as part of its plan; clearly, the management of the company’s affairs, including the moral basis of the policies it is going to follow, is retained in the collective management of the firm. In this case, that management is the same as the ownership pool, and a majority of them has one voice on this particular topic. Ergo, their voice controls their company, even if that pisses off liberals.

    On a final note, I am sorry that you feel that women in the workplace who want reproductive health care are “sluts”. I don’t feel that way, however, and I don’t talk that way, and neither does anybody else on my side of this argument here on Alas. Whether you are sincere or sarcastic or intending a mockery of some disputant who does not appear to be discussing these questions here with us, it leaves us in a situation where you’re the only person saying that they’re sluts. I’d really appreciate it if you would stop calling them that. Thanks.

  47. 47
    Ampersand says:

    The Grotes, by the way, are not providing a subsidized healthcare insurance plan. They self-insure, meaning that they pay for everything directly.

    So are they refusing to take a tax break for this?

  48. 48
    Robert says:

    A tax break for what?

  49. 49
    Ampersand says:

    The employer is not subject to state health insurance premium taxes, which are generally 2-3 percent of the premium’s dollar value.”

  50. 50
    Robert says:

    OK I am confused as to what you’re asking. There is a tax on insurance premiums, the amount varying by state because it’s a state tax. They aren’t paying any premiums.

    So what tax break are you talking about? Not paying a tax because you aren’t doing the thing that is taxed is not a “tax break”.

  51. 51
    mythago says:

    My understanding of equal protection cases, which I will admit is purely lay, is that disparate impact doesn’t support an equal treatment claim when the law is genuinely facially neutral (and not just drawn in a way that looks neutral but is really an attempt to discriminate by statute).

    “Facially neutral” has nothing to do with the intent behind the law. When a policy or law is ‘facially neutral’, all that means is that the law does not explicitly draw a distinction based on, say gender. That says nothing about the intent or effect of the law; if The Man, Inc. proudly admits that its “all employees must be at least six feet tall” is a policy intended to keep women out, the policy is “facially neutral”. That doesn’t mean it’s legal.

    I don’t know what a VERY compelling government interest is. The issue is that religious beliefs are not an absolute; they are not a Get Out Of Law Free card, but nor can we ignore them completely and tell people to STFU (despite the best attempts of a certain conservative-darling Justice to do so).

    Re corporations, an LLC is a limited liability company, not a corporation, and the fact that a corporation has owners does not mean that the corporation somehow acquires the religious beliefs and Establishment Clause rights of its owners. If it’s an explicitly religious entity, such as Catholic Charities, it might be said to be a religious entity -but again, if the owners “are” the corporation, then that runs both ways; they can’t then say they aren’t the corporation if, say, somebody is suing said corporation for deciding to pour toxic waste into the river.

    http://reproductiverights.org/en/case/catholic-charities-of-sacramento-v-superior-court-of-sacramento-county-ca-amicus

  52. 52
    Robert says:

    Correct, an LLC is not a corporation. It’s a hybrid entity that combines the best features of a partnership and a corporation, but is neither. It inherits corporate veil of ownership from the joint stock corporation, and pass-through taxation from the partnership. (Pass through taxation meaning that the LLC doesn’t pay its own taxes; the owners pay taxes on the profits of the LLC as they are distributed.) LLCs can choose to switch to the corporate model of paying income tax if they wish, and many do.

    You are also correct that the owners of a corporation do not pass their Constitutional rights through to the corporation. I’m not exactly sure why you’re bringing that up; I said in my first post on this thread, that a publicly-held corporation has an incredibly difficult task if it wants to claim a religious necessity to be exempted from a statute. Grote is an LLC, not a corporation and its owners/managers retain their individual discretion.

    I don’t know what form of organization Catholic Charities uses; assuming it is corporate, then I can understand the ruling handed down. (I’d argue that they would be one of the corporations that could plausibly make a claim to the religious protections, given their mission and identity, but I can see how it went the other way.) As a result, the organization ended up ending the practice of providing health care benefits to hundreds of people. A brilliant success for liberal judicial innovation, there.

    Yes, I understand that religious beliefs are not an absolute trump card. I’ve been saying that all along; there is balancing that has to be done. In this line of cases, the balancing decision appears to have been made pretty summarily, if only on a preliminary basis, through the granting of all this injunctive relief. There is no apparent question about whether there is a compelling state interest in requiring this coverage: no.

    The question is entirely whether the entity in the particular case qualifies for that right of conscience. The legalities are probably arcane, although I can gather what school of thought is dominant from how the cases are turning out. But as a matter of common sense, that dominant school would appear to be on the right lines. If there’s an identifiable owner or owner group that sets policy for the organization, then that individual or group’s rights are in play.

    Amp didn’t want to answer the compelled-speech argument for his cartooning LLC, but it’s obvious that compelling such speech would be repugnant to nearly everyone’s understanding of the Bill of Rights, and that the form of his organization, unless it atomizes the individuality of the owner group in a seriously profound way, is not very important. It’s a touchy-feely issue; does the owner feel all oppressed and shit? He or she does? Then they’re off the hook, absent that compelling state interest.

  53. 53
    mythago says:

    In this line of cases, the balancing decision appears to have been made pretty summarily, if only on a preliminary basis, through the granting of all this injunctive relief.

    Well sure. The injunctive relief is “hey, don’t enforce this law yet because we’re trying to challenge it.”

    Amp didn’t want to answer the compelled-speech argument for his cartooning LLC

    I can’t speak for Amp, but again, there is a distinction between forced speech, and not granting an exemption from a law that applies to everyone else. We’re not talking about a law that requires business owners everywhere to praise Allah. It’s a law that says everybody must do X, and some people claim their Establishment Clause rights mean the law should not apply to them.

    If you’re going to keep speculating on the legal issues, then it’s probably not a good idea to wave them off as arcane. The link I posted has a link itself to the legal documents in that case at the bottom, fwiw.

  54. 54
    Robert says:

    Injunctive relief is significantly more difficult to get than simply saying “gonna challenge this law, so injunct me, yo.” followed by a quick rubber stamp from the judge. (Additionally, these plaintiffs are not challenging the ACA per se; they’re asserting their right of religious conscience under the Constitution and per the RFRA.)

    To get an injunction excusing you from obeying a law while your case(s) wend their way through the system, you have to convince the court that you would suffer irreparable harm, that it would be in the public interest for you to get an injunction instead (i.e. not just good for you), that the balance of harm favors you, and that you are likely to succeed on the merits of your case when you go to the full hearing or trial.

    Usually most anybody can show the first one (“the law made me sad, and I’ll never be happy again”), the second one is pretty tough (in the health care cases, they can show that their recourse if not granted an injunction is just to cancel everybody’s health insurance and throw the burden onto the taxpayers), the third one is hugely circumstantial (the health care people win this one again because “everybody loses their insurance OR I am compelled to an act I find dreadfully wrong” vs. “some people have to keep buying the birth control pills that they’re already buying” is a no-brainer) and the last one is hugely tough. “Likely to prevail on the merits” is a big hill to climb; even a judge ideologically predisposed to one finding or another, who hasn’t seen all the evidence yet and knows they haven’t, has to be pretty sure before they put their rep on the line like that.

    Judge Kane, a Carter appointee on the federal bench here in sunny Colorado, was the very first judge to grant a company an injunction on the ACA, for Hercules Industries, another family-owned company making a religious exemption claim. Their case was stronger than the Grotes’ because they had some religion-obeying language in their company documents. Kane noted that injunctive relief was an “extraordinary remedy” granted only because the “balance of equities tip strongly in favor of injunctive relief” in the case.

    (The government, familiarly enough, argued that companies like Hercules can’t exercise religious rights because they don’t have any. This argument does not appear to impress many judges.)

    (Blog entry about Kane’s 2012 ruling: http://blog.heritage.org/2012/07/29/hercules-halts-obamacare-in-round-one-of-mandate-fight/)

    So: the widespread injunctive relief granted to all these plaintiffs isn’t standard practice or what ordinarily happens when someone is crabbed about a law. It isn’t dispositive, but the widespread hostility to the administration’s argument and apparent general belief that the argument will not prevail in court is at least indicative of the weakness of the argument.

    “I can’t speak for Amp, but again, there is a distinction between forced speech, and not granting an exemption from a law that applies to everyone else. We’re not talking about a law that requires business owners everywhere to praise Allah. It’s a law that says everybody must do X, and some people claim their Establishment Clause rights mean the law should not apply to them.”

    Yes, of course there’s a difference; it’s an analogous law, not the same bloody law. Would you object to the scenario if the law was that everyone on Earth had to make the capitalism-is-good speech, and it was Amp seeking an exclusion? The point of the scenario was not to equate the evils of providing birth control with the evils of forced speech, it was to get Amp to see that a compulsion that goes to individual conscience goes to that conscience whatever the legal form of the organization the individual is working under. Forced speech would be wrong if Amp was a freelancer, a member of a hippie commune, a worker bee in a union shop, or on the board of AmpCorp.

    A thing that is wrong to do to a man or a woman, is almost certainly almost wrong to do to the collective group where that man or woman does their work.

    Also, the law in question does not say that ‘everybody must do X’. It says that ‘everybody with a certain # of employees and who is NOT a [list of favored entities and classes of entities here] must either do X or pay a whacking great fine.” That is both a very different law in practice, and a very different context in which to seek relief via exemption. “I don’t want to do X, I am a special flower and even though everyone else is, I shouldn’t have to” is hugely different from “I don’t want to do X, I want to be treated like this huge group over here who has already been excused from doing X.”

    (Man, there is gonna be a lot of X left over after this party. Dibs!)

  55. 55
    Jeremy Redlien says:

    Am I the only one who thinks that maybe, perhaps, someone should be able to use The Bible to not fund birth control mandate if and only if they can show, where in The Bible it actually says “Thou shalt not use birth control ever”? Because, last time I checked, The Bible actually does not outright forbid the use of birth control.

    I say this as someone who generally favors religious freedom, but has a hard time understanding why modern law should be bent to accomodate sketchy interpretations of religious texts.
    -Jeremy

  56. 56
    Robert says:

    No. Lots of other people who are also wrong, probably agree with you.

    The state is not in the business of parsing religious claims and deciding that certain of them have sufficient legitimacy to “count”. Of necessity, such parsing would generally be done by people not part of the religion in question, and would be rejected vehemently by the people within that religion. Mythago has a lot of wrong ideas about my religion, and I undoubtedly have many wrong ideas about hers. What a wonderful idea, to give one of us statutory authority over what the other believes. ;)

    Modern law isn’t bent to accommodate sketchy interpretation; modern law is bent to accommodate the right of citizens to do their own interpretation, and not to have that function usurped by the temporal authority.

    To your specific point about birth control, I do not know what, if any, Scriptural foundation that various religions cite for that teaching; there are Christian and non-Christian religions that hold similar positions, so I doubt that they all have a common Biblical foundation. (And one of the key teachings of my church is that not all valid teachings have explicit Biblical support. Sola scriptura is nonsensical.) However, my church’s opposition to birth control pre-dates the Bible in its now generally-used form; it pre-dates some of the later Gospels. This isn’t something we just came up with in the 50s because we were freaked out about convertibles and TV. ;)

  57. 57
    KellyK says:

    One of the things that strikes me about this is that a company that doesn’t cover birth control in any form is providing its female employees with sub-par insurance. (And no, the fact that vasectomies aren’t covered doesn’t make things equal because a vasectomy isn’t treatment for the patient in the same way a birth control pill or an IUD is.)

    There are certain standards for insurance coverage, even prior to ACA. And unless Hobby Lobby is paying 100% of the cost, female employees are paying for this sub-standard, discriminatory insurance. That, to me, is the real problem with saying that companies that self-insure should be exempt from ACA–that it’s okay for them to sell their employees a necessary service (yes, at less than full price, but still taking money out of their paycheck for it) that doesn’t meet the established standards for said service. And, what’s worse, since that service is so tied to employment, they’re not likely to get that service affordably, if at all, elsewhere.

    I’m not sure there’s an inherent religious right to provide goods or services that violate a quality standard, because following that standard is against your religion. If you can’t in good conscience provide insurance that meets the minimum criteria, you should probably not be in the insurance business, any more than you should be in the restaurant business if you have some religious conflict with food safety standards, or any more than you should be a public school teacher if you believe that corporal punishment is a requirement, and you have to violate your religious beliefs to give a kid detention instead of a paddling.

    The birth control thing isn’t by any means the only spot where people’s religious beliefs intersect with medical issues. There are certainly plenty of people whose religious belief discourages, or even forbids, seeking mental health services. (For example, see http://www.psychoheresy-aware.org/mainpage.html or google “Should a Christian see a psychiatrist.”) If someone with that belief owns a company that self-insures, should they get to ignore mental health parity laws and just not cover psych meds or counseling or addiction treatment? For that matter, should a Christian Scientist who owns a company be able to provide a bare bones insurance plan that only covers injuries, because of their religious belief that sickness isn’t real?

  58. 58
    marmalade says:

    One of the things that strikes me about this is that a company that doesn’t cover birth control in any form is providing its female employees with sub-par insurance.

    This. Contraceptive drugs are used for treating a variety of women’s health issues, not just for contraception. And conception control itself is fundamental to many women’s health care, for example, for women which any pregnancy is dangerous. And would these companies’ insurance cover permanent sterilization for women? What if some companies said that their religious beliefs prohibited them from covering mammograms or cervical cancer exams?

  59. 59
    Robert says:

    You both make excellent cases for why health care coverage should not be associated with employment. The answer to just about any “well what if they don’t believe in X, does that mean they don’t have provide X?” is “yes”.

    Where I think you’re getting tempted off the Track of Reason and Truth (and thus lost in the Briar Swamp of Error) is this: any health care plan in a world of constrained resources (i.e., this one) is going to have tradeoffs and differential treatment that end up providing SOME subgroup with “sub-par” insurance. A plan that heavily emphasizes wellness and healthy living is going to give less value for the dollar to employees already far advanced in a variety of serious diseases. A plan that emphasizes acute treatment of immediate issues is going to give less value to highly healthy people looking for treatments to maintain their already good condition. The motivation for the differentials does not matter; hatred of people with arthritis, love of womankind, a cold-hearted desire to just cut costs everywhere: every person’s health profile is unique, and so it is a mathematical inevitability that every plan is going to fuck over SOMEBODY.

    You’re just able to recognize the fucked-overness in the current cases, because it happens to be highly visible, obvious even to outsiders, and motivated by reasons or rationales that you happen not to find compelling.

    I credit you with sufficient common humanity that, presented with a plan that (say) really and plainly is unfair to boys, or cancer survivors, or fitness fanatics, or whomever, you would say “that’s also not cool” and aver that the problem is plans that are unfair to people for whom they are a bad match.

    And you’d be right. Plans that are unfair to people suck. That’s why you really really want a system where there are lots of different plans or options, and people choose their own. But ANY system where the employer, or the governor, or the high priest, is the one picking out plans for other people – even other people whom the authority figure likes and wants to help – is going to end up privileging the authority figure’s point of view over those of their subjects.

    If the authority figure is the one paying for it as well as selecting it? Forget about it…beggars can’t be choosers.

  60. 60
    Elusis says:

    every person’s health profile is unique, and so it is a mathematical inevitability that every plan is going to fuck over SOMEBODY.

    It’s just coincidence that this particular kind of fuckery falls directly on women who have sex, and that some people feel so strongly about women having sex that they’re willing to spend resources to go to court over it.

    I mean, in reality it could be ANYTHING that companies were going to court over in order to not have to fund. Right? I’m sure we’ll see a spate of lawsuits from Christian companies any time now wanting to be able to offer health plans that specifically exclude paying for Viagra because if God doesn’t want a man to have an erection, he shouldn’t have one. Any. Time. Now….

    This is more of that “oppression doesn’t exist” rhetoric from you, Robert, AFACT.

  61. 61
    Robert says:

    If a small fraction of the nation’s employers (continuing to) not pay for birth control constitutes any meaningful share of the oppression you face, Elusis, then congratulations on the incredible progress women have made. I readily concede that religious conscience rights can contribute to oppression; so too can the lack of them. The history of the world indicates that failing to make reasonable concession to religious conscience leads to war, revolt, the fall of nations and social upheaval.

    Let me know when the total social harm of “X employed American women bought their own birth control” matches that total.

    I don’t know of anything specifically Christian about not covering Viagra, but there are plenty of health insurance plans that don’t cover it. They aren’t going to court over it because there’s no government mandate about it.

  62. 62
    Another Alex says:

    It’s just coincidence that this particular kind of fuckery falls directly on women who have sex..

    Why shouldn’t it? Women who use contraception are presumably enjoying themselves having sex, so why shouldn’t they be the ones paying for this benefit?

    The effect of the mandate is basically to cross-subsidise women who use contraception by charging everyone who uses health insurance but doesn’t use contraception. What’s the reason they should pay? Women don’t want to pay for their own contraception, but there doesn’t seem much logic to me in the imposition of the cost, I can see why people taking out other insurance policies don’t want to pay for it either. Is there any reason that desire’s not legitimate? Why are they more deserving of bearing the cost that the people using the contraception.

    The question is whether, on balance, the thing we are trying to make them do is a strong enough state interest – something we don’t want to excuse someone from doing – that they should be exempt.

    What’s the state interest? There are millions of ways we can fund free contraception for women, most countries don’t use an insurance mandate like this. Out of all of these ways, why’s it vitally important to the state that we provide this by clobbering employee insurance plans?

    I don’t get the feeling anyone thinks this law is a genuinely good idea; it’s just they want this done, and this and this is a convienient-ish way to do it. I don’t get the feeling there’s any real logic behind why the burdens are being passed they way they are.

  63. 63
    KellyK says:

    Women who use contraception are presumably enjoying themselves having sex, so why shouldn’t they be the ones paying for this benefit?

    They are. It’s called paying for health insurance. And since contraception costs less than pregnancy, it’s not like it’s costing the employer or insurance company (in this case the same company) any extra.

    And contraception is probably the *only* medical care where anyone would say with a straight face that whether the patient gets some enjoyment related to it determines who should pay. I mean, I thoroughly enjoy not having panic attacks, and I’m a big fan of not being cold and tired all the time. Guess my insurance should stop covering my anxiety and thyroid meds, right?

  64. 64
    KellyK says:

    The motivation for the differentials does not matter; hatred of people with arthritis, love of womankind, a cold-hearted desire to just cut costs everywhere: every person’s health profile is unique, and so it is a mathematical inevitability that every plan is going to fuck over SOMEBODY.

    No, the motivation doesn’t matter, but the effect does. There’s a huge difference between a plan happening to be worse for one health profile or another than a plan specifically discriminating based on sex. For a company to not provide reproductive health coverage, and yet have female employees pay the same premiums as their male coworkers is essentially paying those female employees less.

    Honestly, I would really prefer that healthcare not be tied to employment at all, but the public option wasn’t included in ACA.

  65. 65
    Another Alex says:

    Kelly, you’ve misunderstood how the mandate works. It specifically adds contraception coverage at no extra cost. No higher premiums copayments coinsurance or deductables – so women aren’t paying for it, at least any more than anyone else. And providing insurance with more cover than male coworkers for the same premiums is paying women more not less.

  66. 66
    Robert says:

    There’s a huge difference between a plan happening to be worse for one health profile or another than a plan specifically discriminating based on sex.

    You mean, like, a mandate that requires that women’s contraceptive choices be paid for, but does not mandate that men’s contraceptive choices be paid for? Like the one we have?

    For a company to not provide reproductive health coverage, and yet have female employees pay the same premiums as their male coworkers is essentially paying those female employees less.

    Nope.

    Men and women have all the same health burdens, diseases, conditions, etc. with a relative handful of sex-based conditions and diseases. We get prostate cancer, you get a lot more UTIs, etc. So there’s a huge common pool, and then a fairly small pool of male-only expenses, and then a quite large pool of female-only expenses. (Childbirth being the far and away size queen of that category.)

    The average per-lifetime cost of healthcare utilization is much higher for women; I seem to remember seeing the figure 68% more, but I am not going to go look for it. That’s from childbirth, and to some extent from women’s longer lifespans, but mainly childbirth.

    The contraceptive mandate, however, covers a tiny expense which (in any equitable arrangement) ought to be borne 50-50 by a woman and her partner(s).

    So if a man and a woman pay the exact same premium for the same insurance coverage, and get the same broad set of services at broadly the same rate of utilization, then they are each receiving the same non-wage, health-insurance compensation. If either gender has a set of expenses on top of that common pool which are not covered, then that is an expense that the gender bears, but does not represent a loss from their compensation.

    Analogy: if we both work at a company that gives us three square meals a day, but I cannot live without a fourth square meal and buy one on my own expense once I get home, while you manage with the company issue, I am not getting paid less than you in terms of meals. We’re both getting three.

  67. 67
    marmalade says:

    The average per-lifetime cost of healthcare utilization is much higher for women; I seem to remember seeing the figure 68% more, but I am not going to go look for it. That’s from childbirth, and to some extent from women’s longer lifespans, but mainly childbirth.

    The contraceptive mandate, however, covers a tiny expense which (in any equitable arrangement) ought to be borne 50-50 by a woman and her partner(s).

    Why, then, should childbirth be covered and not contraception?

    Actually, childbirth should NOT be covered (it’s caused by optional recreational sexual activities, it’s a big expense to insurance companies, and it’s something that a only small percentage of insured people need). Should Christian employers be allowed to disallow their insurance to cover childbirth expenses for non-married couples?

    Contraception drugs, on the other hand, are used not only purely for contraception but also to treat a variety of actual ailments in women’s reproductive systems, and a large portion of the insured population have such reproductive systems. Just as medical insurance, I assume, treats prostate cancer screenings.

  68. 68
    mythago says:

    The effect of the mandate is basically to cross-subsidise women who use contraception by charging everyone who uses health insurance but doesn’t use contraception.

    You do understand that this is how health insurance pools work for everything, right? Why does this only upset you when it’s women and contraception?

    Robert, yes, thanks, I know what injunctive relief requires; I also know, as you do, that there is a difference between an injunction prior to hashing out the ultimate issue, and hashing out the ultimate issue.

    Also, re “men’s contraception”, the ACA requires coverage of vasectomy as well as tubal ligation, so not sure what the issue is here. Condoms? Male and female condoms are over-the-counter products and, as far as I understand the rules, are outside of the ACA whether you’re an innie or an outie.

  69. 69
    Robert says:

    Mythago:

    From what I can tell, the ACA does not cover vasectomy. The plain text of the law (to the degree that this mewling abortion of a Polish clusterfuck has plain text) mandates “free” coverage of FDA-approved contraceptive modes for women. It is silent regarding men.

    Insurers appear to be interpreting the law (final regulations have not, of course, been written yet, because what good would it be to know what the rules are going to be in advance?) as not requiring coverage of male contraception. (Though interestingly I did find a couple of insurers who say they’re going to cover it anyway.)

    Some liberal analysts (like one fellow at the Guttmacher Institute who is ubiquitous in the articles on the topic) have said that not including male contraception would be foolish, for medical and/or political reasons. But the Guttmacher Institute isn’t running the show, the FDA and HSS and a few others are. HSS said back in February of 2012 that the mandate applies only to covering females. I am unable to find anything contradicting that.

    So: got a cite?

    And less important, but you’re incorrect about condoms and such as well. If you have a prescription for them – and by “you” I mean “a woman” – then they are covered. “free”. Men still not so much.

    Marmalade:

    Christian (or Jewish or atheist or FSMian) providers should be able to deny whatever coverage they wish, if they have a sincere religious belief that makes such coverage morally objectionable, and if as exhaustively discussed above, carving out an exception for them would not pose an unacceptably heavy burden on a compelling state interest. Why they should be “allowed” to continue not paying for something they’ve never paid for and find morally objectionable, is actually a good question. Another good question, for which the answer is exactly the same, is “why should people be allowed to have birth control?”

    And the answer, of course, is that people have the right of individual conscience. If you think you should use birth control, or I think that I should, then by all means we may proceed freely to do whatever we wish, as free citizens with a whole passel of rights. But just as your employer cannot (usually) make you go to his church, you (or in this case, the state) may not (usually) make him buy you something he or she thinks is evil.

    Let me make a guess: right now you’re saying “but there’s a difference between the cases!” You’re right, there is. The religious conscience right is written right into the black letter text of the Constitution and has centuries of jurisprudence building up to its current strength in the law. The privacy/reproductive conscience right – while in my view entirely valid – is a construct younger than I am, with a fairly shoddy judicial history and a lot of patchwork around the edges. It’s sole virtue is that it happens to be right.

    I don’t know what the story would be on using contraceptively-active drugs or procedures for non-contraception-related ends. I know that sometimes Catholic health care providers will do things that have a side effect of interfering with a pregnancy, although the topic is fraught and there are huge fights about it. I imagine a lot of religious employers would be willing to cover at least some things in that line, but I don’t know categorically.

    But if they don’t want to cover it because they think it’s wrong, then they shouldn’t have to.

  70. 70
    Robert says:

    Checked the official site for the ACA. No mention of vasectomy, at all.

    Fact sheet discussing how sterilization is covered, explicitly, “for women”:

    http://www.healthcare.gov/news/factsheets/2010/07/preventive-services-list.html

    And here’s their fact sheet on the changes to required coverage. Again, sterilization, again, “for women”.

    http://www.healthcare.gov/news/factsheets/2011/08/womensprevention08012011a.html

    Also, this:
    “You do understand that this is how health insurance pools work for everything, right? Why does this only upset you when it’s women and contraception?”

    Wrong, again. Health insurance pools work by collecting premiums that are expected to cover the cost of service to everyone in the pool. Health insurance does NOT work by declaring certain expenses to be off-the-table and “free” to the end user. It may obscure the exact transmission of costs, and it may give one person a better deal than the other, but it does not do so by giving that person free waivers on premiums.

    The amount of money for contraception is trivial;the amount for other reproductive services, significantly less so. Alex is absolutely right when he says that mandating “free” coverage of something used only by one part of the pool transfers the cost for that service to the people who don’t use it.

    Or in this case, to the people who DO also use it – men- but have to pay cash out of pocket for it *in addition to* paying for the cost of the services that women are insured for.

  71. 71
    closetpuritan says:

    Kelly, you’ve misunderstood how the mandate works. It specifically adds contraception coverage at no extra cost. No higher premiums copayments coinsurance or deductables – so women aren’t paying for it, at least any more than anyone else. And providing insurance with more cover than male coworkers for the same premiums is paying women more not less.

    No, I think you’ve misunderstood the argument. I doubt anyone on this thread doesn’t understand that the Affordable Care Act provides contraception at no extra cost to women, either in the form of copays or increased premiums based on sex. (One of the things the ACA did was end the practice of charging more to women for their insurance premiums on the individual market.) As mythago pointed out, people who take a particular drug or get a particular treatment are subsidized by the people who don’t in this case–just like any other treatment. And as marmalade points out, you could make the same argument that it’s “unfair” for males to pay the same premiums as females when only females will be using the pregnancy coverage. Also, providing contraception results in no extra cost to the insurers or to fellow plan members because pregnancy is so much more expensive that it saves them money. So women who pay out of pocket for their contraception are saving everyone else in their plan money by not becoming pregnant–and insurers providing free birth control results in, at worst, not saving as much money as if women took birth control and paid for their birth control. If the female employees of employers who don’t provide birth control did what these employers would presumably prefer* and stop taking birth control, the employers would be out a lot of money and their fellow employees’ premiums would go up.

    The main part of the argument is this: birth control is part of health care. Leaving aside the use of birth control to treat conditions like PCOS or endometriosis, pregnancy has health risks and affects your ability to do your normal activities. Other conditions that affect one’s body this way are considered legitimate health conditions and their prevention or treatment is covered. Even you want to have lots of babies, it’s still a good idea to space those babies out a bit–it can lower risks for both mother and child. If you view sex as something that most adults do sometimes as part of a normal life, then birth control is part of health care. If you view sex as something that even married couples do only for the purpose of having a child, then you probably don’t view birth control as part of health care. If you’re an employer and you hold the latter view because of your religious beliefs, then you can make the argument (as the Grotes do) that you should be exempted from the requirement that your insurance package provide free birth control. But there’s no question that as a society, based our actions, we do not treat sex as something that is only an acceptable activity when the goal is to produce a child.

    Robert: Health insurance does NOT work by declaring certain expenses to be off-the-table and “free” to the end user.
    I thought one of the major parts of the Affordable Care Act was that things defined as preventive care would be free, with no copays, and that birth control is free under the ACA because it’s defined as preventive care. [This gov’t page is a little vague in the introduction–“you and your family may be eligible for some important preventive services — which can help you avoid illness and improve your health — at no additional cost to you”–but it has a list of a bunch of non-birth-control, no-cost preventive treatments shortly afterwards.] So that is part of how health insurance works now, as of the Affordable Care Act–birth control is far from unique.

    I do agree that male prescriptions/surgeries for contraception/sterilization should be covered the same way as female ones. I don’t know what they were thinking if that’s the case. You could make the argument that because pregnancy’s not a condition that affects that patient’s body, it shouldn’t be covered, but I think it’s a bad argument.

    This page has some pretty good info; it doesn’t contradict what Robert said. It seems to indicate that over-the-counter birth control would not be covered whether it goes on/in female or male anatomy, leaving sterilization as the only facially discriminatory part.

    *If they’re married, anyway.

  72. 72
    Robert says:


    Insurance does not involve subsidies, closetpuritan. Insurance is a financing mechanism (a poor one) and a means of spreading out risk (an excellent one); it is not a method to make things cost less, or to permanently shift costs from one group to another.

    A hypersimplified example: take a pool of two, you and I. Assume we’re both in the same general condition, health, age, location, etc. We each incur an average of $1000 per year in medical expenses – sometimes more, sometimes less, but our lifetime average is $1000 per year. We are in a very small health insurance pool, and we pay probably $1500 per year apiece. In one year, I incur expenses of $2000 and you incur expenses of $0. Though you paid a premium and got no direct benefit, and I got more than my payment, you didn’t subsidize me; your participation in the insurance pool provided the finance capital to cover my expense. The next year, I incur $1000 and you incur $3000; the insurance carrier didn’t subsidize our pool for the $1000 they paid out above the premium, they just financed us having a worse year than usual. The third year, I incur $0 and you incur $500; we aren’t providing any subsidy to the carrier, we’re just paying their fee for the previous year when they carried us. And so forth – as long as they get the long-term numbers right, nobody in an insurance pool is subsidized by the other members of the pool. They are instead mutually financing expenses that are highly variable, with the full expectation that every time they are on one side of the table, there will be another time where they’re in the opposite position.

    Say that health care plan didn’t offer any reproductive health care, at all. (You were paying for your solid gold diaphragms, and I was paying for my repeated vasectomies – damn you, mutant healing factor! – out of pocket.) Now we enroll in an ACA-approved plan, and all your stuff is “free”. Now your actual expense to the insurer is $2000 per year, while mine stays at $1000. Your annual premium can’t go up from those expenses, but the insurer has to make their costs as well (a 50% overhead in the first plan). So now the pool costs the insurer $3000 per year for medical expenses, and $1500 per year for overhead…but your premium has to stay at $1000. Mine doesn’t; mine jumps to $3500. I am subsidizing the SHIT out of you, lady. ;)

    IRL, the numbers aren’t so stark (and the pools are much larger), I made them so to draw a clearer picture. And, although you overestimate the savings to be borne from preventive care (it does NOT universally pay for itself; if it did it would be mandated by the insurance companies as a condition of coverage), there are some savings to make the numbers less bitter. (You’re right that a year of birth control is a lot cheaper than a delivery. It is not clear that 40 years of birth control is a lot cheaper than one or two deliveries.)

    But anybody who has an insurance program where certain treatments are “free” and cannot be reflected in their individual premium, it is a mathematical necessity that the other members of the pool will be paying for the costs, and that is NOT how insurance normally works.

    “The main part of the argument is this: birth control is part of health care.”

    There are some people who don’t agree with that, and they are wrong. I think that pretty much anything with evidence to support its efficacy, that people do in order to directly improve their health and well-being, is health care. (There’s a way to parse out vacations in Rio so they don’t qualify, but I’m gonna assume you understand the limits of that principle without them being spelled out in every last detail.)

    Just wanted to get in that agreement, so that the entire thread is not me saying “No, that’s wrong” and then proving it.

    “I thought one of the major parts of the Affordable Care Act was that things defined as preventive care would be free, with no copays, and that birth control is free under the ACA because it’s defined as preventive care. ”

    No, that’s wrong. (See?) The ACA talks about preventive care, and the intention was to have more preventive care, and some of that made it into the bill.

    There is no such thing as “free” for goods and services (which is why I keep putting it in quotes). Somebody pays for it. There may be savings from some decisions that patients or doctors make, but which they might not ordinarily choose unless the law in its wisdom mandates it appear “free” to the consumer, but those savings are less than universally applicable and are probably difficult for insurers to fully capture. And not all preventive care does save money – it’s highly contingent on what the care is, what it prevents, what the side effects are, what the opportunity costs are, etc.

    That said, I am not aware that there was ever any intention of having free-at-the-point-of-service for preventive care be a part of the ACA (though I could be mistaken about that) – and in any event, it isn’t a fundamental principle now.

    “I do agree that male prescriptions/surgeries for contraception/sterilization should be covered the same way as female ones. I don’t know what they were thinking if that’s the case.”

    They were thinking “270 electoral votes…hmm. We need to shore up support among liberal women, because they seem kind of pissed about the whole continuing to torture and blowing people up with drones thing.”

    “This page has some pretty good info; it doesn’t contradict what Robert said. It seems to indicate that over-the-counter birth control would not be covered whether it goes on/in female or male anatomy, leaving sterilization as the only facially discriminatory part.:

    It seems to be a pretty confusing question. The guidelines say its to be covered “free” with a prescription, but doctors don’t generally write prescriptions for condoms etc., precisely because they are OTC. Making someone go to a doctor visit (copay $25) so that they can get a prescription for a $4 box of condoms “free” would be exceptionally stupid, even for government.

    Last thing (I promise!):
    “And as marmalade points out, you could make the same argument that it’s “unfair” for males to pay the same premiums as females when only females will be using the pregnancy coverage. ”

    This goes to a pertinent issue. Who should pay for pregnancy? (Socialists, because every stopped clock is right once in a while, actually have a coherent and reasonable answer on this one, but we’re not going to have socialism so their answer doesn’t work.)

    In a system where individuals are the cost unit for providing care (whether they pay for it themselves or an insurer covers the immediate bill), it seems obvious that women should pay for it. She’s the one who is pregnant, she’s the one getting the services, etc.

    Probably fortunately, this solution, while so common-sense that it’s stupid, is generally rejected in the status quo health care system as being a little too hardline. We instead have a kind of half-assed implementation of the socialist idea, everybody pays. Everybody in your pool, whether 15-year old boys or 34-year old women ovulating all over the place or senior citizens who have forgotten everything about sex, even who gets tied up first, pays a bit more so that the actual baby-havers are paying more or less the same as everybody else. A lot of plans tried to segregate the costs a little more, by having individual plans that didn’t cover babymaking, and ‘family’ plans that did, and charging a lot more for the latter. There’s a fairness argument to be made either way.

    I think the differential cost of insuring for delivery etc. ought to be divided between the woman and the father of the child in question, and allocated as an extra premium on their insurance bills going forward. IE, no charge until you deliver; then you and dad both start paying a bit extra every month for the rest of your lives to cover it. In cases where the father is unknown or unknowable, the other half of the premium would have to be absorbed by somebody; probably the state. In cases where the pregnancy was the result of rape, then the rapist should be charged for both halves.

    That’s probably far too sensible though. Instead we can look forward to the day when it will be “free”, and the people who start talking about the cost of obstetrical training and surgical facilities will be denounced as conducting a war on women.

  73. 73
    Robert says:

    Out of control italic cascade. Run for your lives, villagers! (Hey mod! Come earn that huge salary!)

  74. 74
    Another Alex says:

    Thanks Robert, that was incredibly clear.

    I don’t think you’ll have any success convincing anyone. People don’t want women to pay for contraception, and this mandate is a convienient way to do it. No-one’s interested in the implications or wants to listen to the counter-arguments.

    It’s sad, because insurance is a very sensible thing to buy. It’s paying to protect yourself from risk, rather than doing something frivalous for immediate gratification. Out of all the ways you could raise money to pay for contraception, you’re taking from the people behaving most responsibly.

  75. 75
    closetpuritan says:

    Sorry for the HTML fail in my last comment.

    Robert, sorry if I was unclear, but I was not trying to say that preventive care as a general rule pays for itself; I know that it does not. (You get a lot of bang for your buck in terms of extending lifespan, but the longer people live, the more money they cost.) But I’ve seen in multiple places that in the particular situation of birth control, it does pay for itself. Here, for example:
    Numerous studies have shown that covering contraceptives is revenue-neutral or saves money, as such preventive measures can lower the rate of pregnancies down the line. Pregnancy and childbirth coverage is, of course, much more expensive. (I admit I haven’t studied it much and am only going by “the experts say this”; there could be other experts who disagree.)

    Maybe “subsidize” is the wrong word, but what if we start out with equal health risks, but then I get diabetes and you don’t? Say I’m losing money for my insurance company by $25 a year, but they’re making $500 a year on you, and on the other non-diabetic Average Employees in our small health insurance pool. The diabetics are “subsidizing” the non-diabetics.

    but your premium has to stay at $1000. Mine doesn’t; mine jumps to $3500.
    Are you sure that both of our premiums wouldn’t go up? They can’t charge me more because of my gender, but I don’t think there’s anything prohibiting them from raising my premium just as much as yours. In the end it won’t make much difference in terms of fairness since they’d be raising both our premiums for something only I’m benefiting from.

    There is no such thing as “free” for goods and services (which is why I keep putting it in quotes). Somebody pays for it. There may be savings from some decisions that patients or doctors make, but which they might not ordinarily choose unless the law in its wisdom mandates it appear “free” to the consumer, but those savings are less than universally applicable and are probably difficult for insurers to fully capture. And not all preventive care does save money – it’s highly contingent on what the care is, what it prevents, what the side effects are, what the opportunity costs are, etc.

    OK, so I didn’t put “free” in quotes, but yes, I know that in many cases “free” things are paid for elsewhere. It’s free in the “at no additional charge” sense. Any preventive care that does not pay for itself (most preventive care) you were already charged for when you paid your premium, and you will have no additional copay for your cholesterol/colonoscopy/blood pressure screening. Any preventive care that does pay for itself, as birth control maybe does, is “paid for” because insurers are willing to pay a smaller amount now so that they can avoid paying a larger amount later.

    That said, I am not aware that there was ever any intention of having free-at-the-point-of-service for preventive care be a part of the ACA (though I could be mistaken about that) – and in any event, it isn’t a fundamental principle now.
    Actually, it’s in one of the pages you linked to:
    If you have a new health insurance plan or insurance policy beginning on or after September 23, 2010, the following preventive services must be covered without your having to pay a copayment or co-insurance or meet your deductible. This applies only when these services are delivered by a network provider.
    It goes on to list 16 services for adults, 22 services for women, and 27 services for children. 8 of the services for women are also required to have “no cost-sharing” starting in 8/1/2012 rather than 9/23/2010, including birth control.

    Also, this is kind of tangential, but:
    You’re right that a year of birth control is a lot cheaper than a delivery. It is not clear that 40 years of birth control is a lot cheaper than one or two deliveries.
    40 years of birth control is preventing a lot more than one or two deliveries, unless the person in question has fertility problems or miscarriage problems. (Actually, a bunch of miscarriages would be pretty expensive too.) Also, there’s more than just the delivery to take into account–if, say, a woman’s C-section incision reopens, or if she develops incontinence and needs corrective surgery, it’s a childbirth-related cost but not part of the delivery itself.

  76. 76
    Robert says:

    Sorry for the HTML fail in my last comment.

    To redeem yourself, you must battle the Rancor beneath the throne room of Jabba’s palace. Alternatively, you can come up with a less stupidly complex rescue plan than the one Luke devised; I’d go with orbital bombardment from one of the capital ships in your space navy, but that’s just my ham-handed directness.

    Thank you for the link re: contraception cost studies, I shall peruse them at some point. And thanks for clarifying the nuance of your perspective; we’re in agreement on that, I think.

    “Maybe “subsidize” is the wrong word, but what if we start out with equal health risks, but then I get diabetes and you don’t? Say I’m losing money for my insurance company by $25 a year, but they’re making $500 a year on you, and on the other non-diabetic Average Employees in our small health insurance pool. The diabetics are “subsidizing” the non-diabetics.”

    Subsidize is the right word, I think, for what you mean. Prior to the ACA, this kind of subsidy didn’t happen. When you got diabetes, your premiums went up, because your risk (of incurring new expenses) to the pool went up. The Platonic Ideal of insurance company would make the exact same (modest) profit on every insured person in their pools, with each person paying a scrupulously re-calculated premium every year to reflect their real condition. In actuality there was more blurring, grouping, and chunking than that but the principle was operative.

    Under the ACA that has changed, as I think you are referencing. Insurers aren’t supposed to raise an individual’s premiums when that individual’s risks go up, and they aren’t supposed to bar people from joining the pool when they have a known risk (“pre-existing conditions”).

    The problem there is that insurance, conceptually, requires those two things to happen. Insurance companies are not in the business of making sure that everyone gets healthcare; they are in the business of making sure that the people in their pools are able to manage risk and spread costs in predictable ways. (And taking, to be sure, a hefty profit for that service.)

    You can have a service wherein everyone’s premiums are the same, and where new costs don’t go onto that individual person’s account but into the pool’s account as a whole. You can even run that service for profit, and insurance companies are actually quite well-suited to manage that kind of company, if they can get their minds around the changed paradigm. ObamaCare is not impossible (just unlikely). The problem that now arises, though, is that the new service is a much worse deal for its typical member, than the old insurance program was. My insurance company kept out the 1% of people with Creeping Hugelyexpensiveitis, and when people in the pool caught it from kanoodling with the housepets, their premiums went through the roof.

    Don’t get me wrong. That SUCKED for the 1%, and for the unlucky disease-catchers. (That weeding-and-charging process itself is a big part of the reason that insurance is not a very good model for paying for health care.) But it was awesome for the 99%, because it meant that their insurance bet/risk smoothing/financial management tool didn’t cost them a whole lot of money. (Or at least, less than it’s gonna cost now.)

    So what happens now when all you perverted petophiles catch the Creeping $ disease? It goes onto the general bill of the pool, and everyone’s premiums go up. You may think “well, I wouldn’t mind, knowing that my own expenses won’t make my premiums go up or get kicked out of the plan”. And there would be a fair # of people who felt the same way – specifically, all the ones catching expensive stuff that would have cost them in the olden days, but doesn’t differentially cost them now.

    The people who don’t feel that way is the group that, in the current year, will be paying (more) premiums for the same care (zero, in many cases) – and those people will hate being in the pool. That’s why there’s a mandate; without forcing people to participate, the quasi-insurance promulgated by the ACA would fall apart like a cheap suit.

    It is not often practical to make people do things like buy expensive health care policies that they don’t want, year after year after year. In a democratic republic, even less practical.

    “Are you sure that both of our premiums wouldn’t go up? They can’t charge me more because of my gender, but I don’t think there’s anything prohibiting them from raising my premium just as much as yours. In the end it won’t make much difference in terms of fairness since they’d be raising both our premiums for something only I’m benefiting from.”

    Correct on both counts. Thanks for fixing my thinking on that, AND for seeing that the discrimination persists regardless. You must be new to this Internet thing. You should have called me Hitler by now.

    “40 years of birth control is preventing a lot more than one or two deliveries, unless the person in question has fertility problems or miscarriage problems. ”

    I was assuming that the woman in question would buy birth control and space her pregnancies even if someone else was paying the freight. We haven’t had mandated birth-control payment rules, and American fertility is a bit more than 2 kids per woman (so I should have said ‘two or three deliveries’), so presumably the average woman is somehow finding the resources.

    Thanks for a good discussion. I award you thirty-five Internet arguing points, redeemable for cash prizes, or for a get-out-of-Rancor-battle coupon.

  77. 77
    KellyK says:

    Alex, I haven’t had time to read through the whole thread, but either you’ve misunderstood my argument or I wasn’t clear enough.

    Women pay for health insurance coverage. In order to keep costs down, the ACA mandates that health insurance includes preventative care at no cost, so that people will get their yearly check-ups, use contraception if they want to, and save money down the road on other, more expensive things (pregnancy and childbirth in the case of contraception, conditions that have progressed and are now more serious and more expensive in the case of preventive care).

    If I’m using contraception rather than getting pregnant, I’m saving my insurance company money. ACA mandates, pretty fairly, that they don’t get to “double dip” by charging me for the contraceptives that save them money. (I do agree that vasectomies should be covered, and if a male birth control pill ever comes out, so should it.)

    I also think it’s really hilarious that you think the biggest medical expense of a woman’s life should be ignored by health insurance because sex is “optional.” First off, no, it’s not always, and secondly, again, we don’t judge anything else that way. If you break your leg skiing, your insurance pays.

  78. 78
    Robert says:

    Remarkable that the insurance company employees, who personally get paid gigantic bonuses every time they find a way to save money, were universally too stupid to realize that they would be saving money by covering contraception on a voluntary basis. Thank heaven we have a government wise enough and powerful enough to make us do the things that the government claims are so beneficial to us, that they don’t actually have any cost, yet that we are just too stupid to see for ourselves.

    If you break your leg skiing your insurance pays…if you have an insurance policy that covers that. Many policies specifically exclude hazardous activities, and even define ‘hazardous’ as being anything not formally subject to risk minimization practices. Remember Sarah Burke? She was the Canadian skier who died from head trauma after an accident on the slopes in Utah. Her insurance didn’t cover the expense, because she was competing at an unsanctioned (i.e., unofficial) event. There is undoubtedly some minute differential in safety between a sanctioned and unsanctioned event; the sanctioned event follows some rules a little better, etc. But there isn’t really a meaningful, measurable increase in riskiness. She just had bad luck.

    Before you say “well, fairness demands that her insurer should have ignored their black-letter rule and covered her!” – note that there is a fairness argument from the other side of the table, too. If her insurance company had paid, that’s a half-million dollars that goes out of the pool that those other people were counting on to be there for their expenses.

    There are lots of things you can do that will cause a need for medical intervention, that most insurers won’t cover.

  79. 79
    closetpuritan says:

    One thing I didn’t spot right away: aspirin (for “certain ages”–for heart attack/stroke prevention) is #3 on the list of no-copay, no-deductible, etc. Since aspirin is normally over-the-counter, I wonder if it would be feasible to use whatever system they use to pay for aspirin to cover over-the-counter birth control (condoms, emergency contraception). If so, that makes it even more questionable that OTC birth control is not under the “preventive care” umbrella.

  80. 80
    Robert says:

    “Whatever system they use…”

    Given that they’ve created a system to recompense people from the burden of buying something that costs less than one cent per pill, retail, I am going to hypothesize that the system involves carving golden plates into theologically dubious prophecy, starting a religion on the basis of same, requiring the donations every weekend to be given in pennies, and then transferring the pennies to the aspirin conglomerate to cover the “expense”.

    Aspirin. My God. It literally costs more in the value of someone’s time at minimum wage to say “My aspirin copay is $0, thanks” than it costs to buy the damn aspirin.

  81. 81
    closetpuritan says:

    One of the times that I had tendonitis, my doctor prescribed ibuprofen. Since the copay cost more than the OTC kind and I was able to figure out the dosage in OTC pills, I got OTC in the future. If their system is similar to that, where a doctor prescribes the OTC drug and you get it in a special bottle with your name and your instructions, it does seem like a waste of both the doctor and the pharmacist’s time and not a sensible use of money.

    I don’t think that charging everyone within a pool the same premium is as revolutionary as you’re saying. My understanding is that that’s what large employer-provided health insurance does now–certainly, no one representing my health insurance company has asked me about smoking habits, weight, etc. It’s surprisingly hard to find information about that online, but there’s this.

    Oh wait, here’s a better one:

    A federal law known as the Employee Retirement Income Security Act (ERISA) sets rules for private employer-sponsored benefit plans, including health insurance plans. ERISA protections for people in job-based health plans include:
    -You generally cannot be turned away or charged a higher premium because of your health status under an employer-sponsored plan.
    -Employer-based plans are currently allowed to exclude coverage for pre-existing conditions for a period of time, usually no more than for one year. If you had other coverage without a significant break before joining your current plan, generally it must be credited toward the pre-existing condition exclusion period. Due to the health reform law, starting in September 2010, job-based health plans won’t be allowed to deny or exclude coverage to any child under age 19 based on a pre-existing condition.

    However, it says under ERISA you “generally” cannot be excluded or charged a higher premium for a pre-existing condition, and it lists as an ACA-based change beginning in 2014, “Employer-based health plans and new individual plans won’t be allowed to exclude anyone from coverage or charge a higher premium for a pre-existing condition, such as diabetes.” How significant the change is depends on how big those “generally” exceptions are.

  82. 82
    closetpuritan says:

    (It doesn’t say anything about age, though.)

  83. 83
    Robert says:

    You’re right that it’s not a revolutionary change, but an evolutionary one. I did say that it can work; it won’t, but in theory it can.

    ERISA does provide some kinda-sorta must-cover protections to those in an employer plan. However, I’d be cautious about generalizing from that to the universal population. The thing about employer-provided insurance pools is that nearly everyone in them is in at least marginally good health; they’re all holding down a job. The people who are too sick to work, by definition aren’t going to be coming to the insurer; they can provide coverage without quite as much worry over existing conditions, because whatever the existing conditions are, they are probably not too bad.

    I’m reminded of living in Conifer, CO, a decade or so ago. It was an area of the state with few teenagers and few young people; it was hard for them to find fast-food workers, stockers at the grocery store, etc. The actual minimum wage was about $10 per hour; nobody paid less than that because the tiny pool of those laborers had the whip hand. So in Conifer, you could make the minimum $3 an hour or $9 an hour or anything between, and studies would show zero change in employment. But it was only true so long as the selected population happened to make the law irrelevant.

  84. 84
    closetpuritan says:

    Robert, it’s true that it does exclude many of the too-sick-to-work people–it excludes the ones who are unmarried adults–but OTOH, it doesn’t exclude spouses or children who are too sick to work/would be too sick to work if they were old enough to work. As for whether it will work in practice, I guess we’ll find out soon enough.