3 key issues about the Little Sisters case

Last updated on: March 23, 2016 at 9:24 am by Jane the Actuary

3 key issues about the Little Sisters case 2016-03-23T09:24:57-06:00 Jane the Actuary

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First of all, apologies for jumping in without context, but here are four thoughts for your Wednesday morning. For more detail, and links to the briefs and other resources, see the National Review.

1. It’s about the Religious Freedom Restoration Act, not the First Amendment. This law was passed in 1993 after a series of court cases which had ruled that the First Amendment did not protect religious observance/practice in the case of government actions which were neutral, in principle, even if they had the effect of hindering religious practice. The most notable of these was the case Employment Division v. Smith, in which two Native Americans were fired from their jobs due to the use of peyote (and consequently failing drug testing), and were denied unemployment compensation benefits.

Here’s wikipedia’s summary:

the Act states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

The law provided an exception if two conditions are both met. First, the burden must be necessary for the “furtherance of a compelling government interest.” Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues. The second condition is that the rule must be the least restrictive way in which to further the government interest.

This means there are two questions under dispute: does the contraceptive mandate “substantially burden a person’s exercise of religion”? And it the “least restrictive way in which to further the government interest”?

2. It’s not about “signing a piece of paper.” If this were simply a piece of paper that documents the objection, and exempts them from fines for failing to comply with the mandate, it would be trivial. But the form is one that provides the relevant plan information whereby the government is able to inform the insurer/third-party administrator that they are required to cover contraceptives. And in doing so, it links the Little Sisters to the provision of contraception: their employees and their dependents will have the same user experience as any other individual with non-grandfathered non-exempt employer-provided healthcare.

Of course, a key legal issue is who gets to decide what counts as a “substantial burden” — the administration, or the person who feels burdened.

3. There is an alternative, which the Sisters themselves suggest (or at any rate, a Sister suggested, in the New York Times): the government could simply provide contraceptive benefits separately, for all women whose healthcare plan (not the same as a “health insurance plan”) doesn’t cover this. In fact, this alternative would be a more effective way of providing contraceptives and achieving the government goal of reducing unplanned pregnancies, since it would encompass all women, including the uninsured, and those insured by grandfathered/exempt plans.

Is this a “less restrictive” alternative? The terminology doesn’t entirely work, here, because the law envisions restrictions impacting religion, not government mandates. And in a way, this flips things around: the government might argue, in turn, that providing contraception directly is too much of a burden on government. (“Might argue” = it’s been a while since I’ve read the briefs, and I only have time to type up a few comments now, but I don’t think they directly address this.) But, of course, the government has been involved in providing contraception for decades now, just not comprehensively.

But, incidentally, people are fond of bringing in the Jehovah’s Witnesses objections to blood transfusions, and “what if a JW company owner objected to including blood transfusions in the health insurance plan?”, but here’s where it doesn’t work: contraceptives are a routine purchase which can be separated out into an alternative provisioning system to a much greater degree than a component of a broader medical treatment for an illness or injury.

And more extreme analogies of “what if someone claimed their religion required them to scalp their neighbors?” fail, too, because the balance between the burdenness of the restriction and the “compelling government interest” comes out in favor of the “compelling government interest.”

But fundamentally, there are three potential payors for contraception: the users themselves, employers, or the government. (Note that I’m not listing “health insurance companies.” Someone purchases the heath insurance — which, as far as contraception goes, is more of a prepaid healthcare plan.) If the government’s objective is to get as many women as possible to use IUDs (I linked to this yesterday), is it reasonable for them to make employers the middlemen, or not?

UPDATE: actually, there’s a fourth potential payor: for a purchaser of unsubsidized health care benefits, in which pricing is based on age, not sex, a woman’s IUD cost is shared by those in her age band who use less expensive forms of contraception, or none at all. And, really, that gets into what was going to be item #4, but it’s too complex to get into this morning: does contraception “pay for itself”? Which depends on a number of factors, including the extent to which women would have purchased it themselves otherwise, and the extent to which no out-of-pocket cost contraception reduces lifetime number of pregnancies for the insurance-purchasing demographic (as opposed to poor women who are already getting employer-funded contraception).

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