Hobby Lobby: Time for a Revolution

Well?  Should we make Hobby Lobby provide health insurance coverage that pays for birth control?

To begin with, I will remind readers that I wrote about the issue of coverage for birth control by private health insurance over two years ago, making the argument that the economic case for coverage for women who are not indigent is weak.  Women who are sufficiently needy that such coverage makes the difference between having and not having access to birth control are typically covered by Medicaid or eligible for low-cost services from Planned Parenthood.

So we are, as a practical matter, not talking about denying women access to products or services based on someone's religious beliefs.  What the Supreme Court said in Burwell v. Hobby Lobby is that, under certain circumstances, a company that is "closely held" (private ownership by a small number of people) cannot be required to pay for coverage for birth control the use of which violates their religious beliefs.

The 5-4 majority opinion in this case relies heavily on the Religious Freedom Restoration Act (RFRA), a 20-year-old federal law intended to preclude substantial burdens upon the free exercise of religion.  That law was enacted with a mere three dissenting votes in the Senate and not a single "nay" in the House, which is quite remarkable.  Surely the Congress had no idea that two decades later the law would be the basis for such a controversial Supreme Court opinion. We have a national legislative body of 535 people who have ceaselessly behaved as though they've never heard of the Law of Unintended Consequences.

The Supreme Court's decision has been lambasted by progressives in every forum imaginable.  This I understand, because many people who vigorously advocate in the realm of reproductive health care have very strong feelings about these issues.  And I am inclined to agree with them that the effects of this decision are undesirable.  But that doesn't mean the decision is incorrect. Examined from the standpoint of legal reasoning, the majority opinion seems to me to be entirely logical.  Difficult though it is to separate one's view of a judicial opinion's effect from the logic of its reasoning, when I force myself to engage in the exercise, that is my conclusion.

The logical short-term solution is obvious from the text of the RFRA itself.  A federal statute adopted subsequently can explicitly exclude application of the RFRA to its provisions.  Problem solved.  Can federal law mandating coverage of contraception now be enacted with such explicit language?  That is a political question.  And the people who have the power to answer that question are the ones going to the polls this November.

Quite willing to be an opportunist, I am now going to take advantage of the opening afforded by this decision to make the case I have advanced in many postings on social media but have not expounded in this blog.

I don't want Hobby Lobby to pay for birth control.  I don't want Hobby Lobby to pay for anything.  I don't want Hobby Lobby to provide health insurance coverage to its employees.  I don't want any employer in the US to provide health insurance coverage to its employees.

In the United States of America it is time for a Declaration of Independence from the absurdly fragmented non-system of financing health care that has plagued us for decades.  We have some people covered by employer-based health insurance.  We have some people covered by government programs. We have 15% of the population covered by nothing.  When we look at all of the people, no matter which group they fall into, it is arguable that the current arrangement serves no one well.  Ask doctors, nurses, and the people who run hospitals if they think the status quo is good for any of them or any of their patients.  Ask patients - even the ones on Medicare, which has the highest levels of satisfaction - whether everything is just fine and dandy.  The Medicare patients who've been socked with big bills, because the government would pay for observation (meaning outpatient) services instead of a hospital admission, will tell you they are none too pleased.

What's the problem here?  All of the payers are trying to get away with paying as little as possible for all services provided.  They'd like to pay nothing whenever they can get away with that, and leave doctors, patients, and hospitals holding the bag.

The solution?  A system that includes everyone: a National Health Service. Everyone is a stakeholder. All patients have the same status, because everyone is a "covered life" on equal footing.  There is no health insurance industry, because there is no health insurance.  People who work pay taxes.  These public funds are used to finance the health care system.  There is only one payer. Decisions about what to pay for and how much to pay are made by agencies of the government composed of stakeholders, heavily weighted toward experts: doctors, health policy wonks, health care consumer representatives.

Do you think when decisions are made that way we will have anyone deciding it makes any sense not to pay for birth control?  Of course not!  Because that is bad public policy and bad health policy, defying all logic and common sense. Whether it violates anyone's religious precepts won't even be part of the discussion.  I can hear some readers asking, "What about the Hyde amendment, prohibiting the use of federal funds to pay for abortions through the Medicaid program?"  That is yet another example of why we need to scrap the current crazy-quilt non-system and start over, taking these decisions out of the hands of politicians and giving them to governing boards with representation from all groups of stakeholders.  When everyone in the nation is a stakeholder, we won't have anyone making decisions that don't have broad support.  If it is decided that something will or won't be paid for, that decision will have to stand up to scrutiny from the entire body politic.

Now I will confess that I do not believe we will have a system like the National Health Service of the United Kingdom in my lifetime, because I have only a few decades left, and the political power of the health insurance industry is immense and will be brought fully to bear to prevent such a change.  But I am here to tell you that we will never solve all the myriad problems arising from the insanity in our health care financing until we make just this kind of radical change.