Welcome to Health Reform Watch, Sarah Kliff’s regular look at how the Affordable Care Act is changing the American health-care system — and being changed by it. You can reach Sarah with questions, comments and suggestions here. Check back every Monday, Wednesday and Friday afternoon for the latest edition or sign up here to receive it straight from your inbox. Read previous columns here.
Programming Note: There will be no Health Reform Watch this Friday, Nov. 29 due to the Thanksgiving holiday. Happy Thanksgiving and, to those who celebrate, Happy Hannukah too!
Tuesday, the Supreme Court announced that it would hear a case on the health law's contraceptive mandate. And that made Wednesday's Health Reform Watch an excellent venue to explore how we got here -- and what happens next.
Let's start with the basics. What are we fighting about?
The legal fight here centers on a part of the health-care law that requires all health insurance plans -- not just those offered on the exchanges, but any coverage sold in the United States -- must cover preventive benefits without any cost sharing. The Affordable Care Act did not, however, define what counts as a "preventive benefit." Instead, it left that task to the Institute of Medicine, which recommended in July 2011 that contraceptives be included in a suite of preventive benefits for women, alongside coverage for breast feeding and cervical cancer screenings.
The IOM recommended that preventive services for women include "The full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for women with reproductive capacity."
Health and Human Services adopted the Institute of Medicine proposal in an August 2011 rule on preventive services.
Who opposes this part of the health-care law and why?
The Catholic Church has been especially outspoken in opposing the contraceptives mandate; tracking by the Sunlight Foundation finds that the Roman Catholic Church submitted more federal comments on the preventive benefit regulation than any other organization.
The Catholic Church generally opposes all forms of contraceptives. "Artificial interference with the creation of life, including through abortion, sterilization, and contraceptives, is contrary to Catholic doctrine," one lawsuit filed by multiple Catholic archdiocese argues.
Other Christian organizations and Christian-owned businesses oppose the mandatory coverage of certain types of contraceptives, but not all of them. Evangelical leaders have, for example, come out against the requirement that the contraceptive mandate includes the morning after-pill, which some believe causes an abortion (most scientific research has found that the Plan B pill does not cause abortions).
Wasn't there some kind of fix offered by the White House on this?
Yes! Facing strong pushback from religious groups, the Obama administration offered relief to faith-based organizations, like hospitals and universities affiliated with specific churches (the churches themselves were already exempt). The administration proposed in February 2012 that the insurance companies would be required to provide employees at these institutions a completely separate, stand-alone policy that just covers birth control. The Roman Catholic Church wasn't satisfied with this policy, arguing that the money they spend on insurance could ultimately end up directed to those stand-alone birth control policies. And, either way, this fix didn't address the cases that ended up at the Supreme Court.
The two cases the Supreme Court will hear are brought by private business owners, who did not get any relief from that compromise, which was aimed at faith-based organizations. These are private businesses that are required to comply with the contraceptives mandate in full.
Who did bring the lawsuits that are going to the Supreme Court?
There are two companies whose cases got cert from the Supreme Court. One is Hobby Lobby, the craft store chain owned by Evangelical Christians. Hobby Lobby owner David Green says that he has always run his business "in a manner consistent with Biblical principles." All stores, for example, close on Sundays.
The second case that the Supreme Court agreed to hear came from Conestoga Wood Specialties, a small carpentry firm in Pennsylvania that specializes in cabinet making and is owned by a Mennonite family.
Are these the only lawsuits against the contraceptive mandate?
No: There have actually been, by one legal group's count, 84 cases brought against the health law's birth control mandate. These two, however, were among the first filed and earliest to make it to the appeals court level. The two appeals courts that heard the cases - the Tenth Circuit for Hobby Lobby and Third Circuit for Conestoga Wood - came to different rulings, which made it all but certain the Supreme Court would take up the issue.
What are the legal arguments in this case, explained in one sentence?
The central fight here is whether the birth control mandate violates federal protections of religious freedom.
Okay, let's get into a bit more detail. What do opponents of the mandate argue?
The businesses challenging the contraceptive mandate tend to argue that it violates two key protections of religious freedom: the free exercise clause in the First Amendment and the Religious Freedom Restoration Act, or RFRA.
That first protection should seem pretty familiar, given that it comes from an amendment to the Constitution that most of us learned about in grade school, guaranteeing Americans the right to practice their religion freely.
RFRA is likely a bit less familiar: It's a law that President Clinton passed in 1993 that says the "government shall not substantially burden a person's exercise of religion." That law says that, if the government does create that substantial burden, it has to do two things: Prove there's a really good reason for the burden, and no less burdensome way to achieve the policy goal at hand.
Opponents of the contraceptives mandate argue that the contraceptives mandate is a substantial burden on their religious exercise, and is therefore illegal under RFRA.
"Neither RFRA nor Supreme Court precedent suggests that a for-profit entity is barred from making a religious liberty claim," Hobby Lobby argued in one brief with the Tenth Circuit Court of Appeals.
How does the federal government defend the contraceptive mandate?
The federal government argues that RFRA protections do not apply to for-profit corporations, but rather are intended for private individuals and faith-based institutions.
"No court has ever found a for-profit company to be a religious organization for purposes of federal law," Solicitor General Donald Verrelli argued in a brief with the Tenth Circuit Court of Appeals. "On the contrary, courts have emphasized that an entity’s for-profit status is an objective criterion that allows courts to distinguish a secular company from a potentially religious organization, without conducting an intrusive inquiry into the entity’s religious beliefs."
The federal government argues that the contraceptives mandate does not put any burden on Hobby Lobby and Conestoga Woods's own exercise of religious freedom, as they themselves are not required to purchase contraceptives.
"We simply cannot understand how a for-profit, secular corporation—apart from
its owners—can exercise religion," the judges in the third circuit decision wrote.
What happens next?
Now that the Supreme Court has agreed to hear the two cases, it will likely schedule oral arguments for sometime next spring and issue a decision in early summer -- much like it did with the first health law court case it heard in 2012.
What does this court case mean for the rest of the health-care law?
Not a whole lot: The contraceptives mandate is not key to holding together the health-care law in the same way that the individual mandate's requirement to purchase insurance coverage was. While the provision has widespread support from women's health groups, it would not take the law down with it if it fell. The practical impact could be small as well, as most private, for-profit companies do not object to providing contraceptive coverage and began doing so in the summer of 2012, when the requirement went into effect.
KLIFF NOTES: Top health policy reads from around the Web.
The White House urges a cautious return to HealthCare.gov. "White House officials, fearful that the federal health care website may again be overwhelmed this weekend, have urged their allies to hold back enrollment efforts so the insurance marketplace does not collapse under a crush of new users. At the same time, administration officials said Tuesday that they had decided not to inaugurate a big health care marketing campaign planned for December out of concern that it might drive too many people to the still-fragile HealthCare.gov." Michael Shear and Robert Pear in The New York Times.
Democratic legislators are eagerly seeking Obamacare success stories. "In a pre-Thanksgiving messaging memo, Democratic senators are being urged to use the holiday break to find success stories and “aggressively publicize them so that people can see the law is delivering on its promise.” The memo was prepared and distributed by the Senate Democratic Policy and Communications Committee, the Senate Democrats’ political messaging operation." Ed O'Keefe in The Washington Post.
How some state exchanges got waylaid in their launches. "Bureaucracy and politics also bogged down the technology decision-making process for some states that waited until this year before declaring that they would run their own exchanges. Now tensions are mounting between state exchanges and their systems integrators, which felt pressed for time from jump street. Deadlines have come and gone, and impatience among consumers has grown, leading to the sort of finger-pointing seen between the CIO of Vermont’s exchange, which has suffered from outages and at least one security breach, and its consultant on the project, CGI Group Inc." Clint Boulton in The Wall Street Journal.
Health Reform Watch's Fix Tracker!
President Obama has asked states to allow insurance companies to renew non-Obamacare compliant plans through 2014. We'll be using this tracker to keep a running list of how states are deciding. For a more thorough version of this tracker, check here. And let us know if your state is missing!
Allowing late renewals: Hawaii, Ohio, N.C., Fla., Ky., Penn., Tex.
Not allowing late renewals: Calif., D.C., Mass., Md., Minn., R.I., Vt., Wash.
Still deciding: Colo., D.C., Ind., Miss., Ore., S.D.