2018 MIDTERM ELECTION

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Federal Judge rules enrollee can't be required to ACCEPT coverage

Remember the Hobby Lobby and Little Sisters of the Poor Supreme Court cases, in which each protested the ACA's requirement that healthcare plans covered by employers include contraceptive coverage?

Well, guess what? It turns out there's another "Obamacare contraceptive requirement" case which chugging along through the federal court system, and a federal judge just ruled against the government again. This time, however, instead of an employer having a problem with providing contraception for "sincerely felt" religious reasons, it's the enrollee who's getting the vapors over the prospect of being required to receive the coverage.

As reported by the "Religion Clause" blog (h/t to Patrick O'Mahen and Greg Lipper for the heads up):

In Wieland v. U.S. Department of Health and Human Services, (ED MO, July 21, 2016), a Missouri federal district court enjoined the federal government from enforcing the Affordable Care Act against a couple who, on religious grounds, object to participating in a healthcare plan that provides coverage for contraceptives and similarly object to providing contraceptive coverage to their daughters who are on their health insurance policy. Plaintiff, a Roman Catholic, is a Missouri state legislator and receives health insurance through the state's health care plan. Finding that plaintiffs have standing because they might be able to find a plan that does not offer contraceptive coverage, the court went on to hold that RFRA bars enforcement of the mandate against plaintiffs, saying in part:

Defendants further argue that “[i]t is not a substantial burden on a person’s religion to subscribe to a group health plan that covers services that the person will not use for religious reasons, or that other individuals covered by the plan will elect, in the exercise of their personal choice, to utilize.” Plaintiffs contend that Defendants’ argument is, in essence, an attack on the sincerity of their religious beliefs, which the Supreme Court most recently in Hobby Lobby cautioned against. This Court agrees. Defendants’ argument is, in effect, an argument that Plaintiffs’ religious beliefs are unreasonable. However, the sincerity of Plaintiffs’ religious beliefs has not been disputed, and it is not for the Court “to say that [Plaintiffs’] religious beliefs are mistaken or insubstantial.”

The court went on to hold that even assuming that the government has a compelling interest in "a workable insurance system that covers a wide range of preventative health services," there are less restrictive means of achieving this goal:

the government could allow a system like that in place in Missouri before the Mandate, where individuals could simply check a box to opt out of contraceptive coverage.

I apologize for reposting the whole entry, but it's pretty short and half of it is itself a quote directly from the decision.

Here's a concept (or a conception?) for you: If you don't like the contraception coverage, don't friggin' use it.

As O'Hahen noted:

*headdesk* this ruling undermines the entire concept of insurance @bjdickmayhew @charles_gaba https://t.co/iNOGQutQzS

— Patrick O'Mahen (@PatrickOMahen) July 22, 2016

Exactly. Insurance isn't a salad bar. If people pick & choose every individual service, medication, treatment or procedure that's included (on the assumption that they may or may not require those services some day), the entire point of shared risk starts to fall apart. Of course, we do this to some degree by keeping dental and optical coverage separate, but the more you start doing this the worse the problem becomes, because you're breaking the plans up into smaller and smaller risk pools, cluttering the market and making each pool less and less stable. We should be working towards merging risk pools into larger ones, not breaking them into smaller ones. (In fact, it could even be argued that dental coverage should be included as a standard benefit, seeing how everyone has teeth (or at least needs dental care if they don't).

As further reported by Modern Healthcare:

The government had also argued that the nation's insurance markets wouldn't be able to function if insurers had to tailor each health plan to each individual's needs and preferences.

But the judge said the ACA is fundamentally different from other government programs such as Medicare and Social Security, in that the government does not provide the insurance. It can be left up to insurers to decide whether or not to offer contraceptive-free plans, the judge wrote. The judge agreed with the Wielands' assertion that the government could allow individuals to check a box to opt out of contraceptive coverage.

Douglas Laycock, a law professor at the University of Virginia and expert on religious liberty law, said in an email that he believes the government will appeal the case.

He said he doesn't see how insurers could set up separate pools for beneficiaries who want contraception coverage and those who don't. Laycock also, however, said it makes sense, as the court suggested, to let insurance companies figure out what they can offer.

“If it's unworkable, as the government says and I suspect, the insurers won't do it, and the plaintiffs will have no remedy,” Laycock wrote. “If it is workable, or maybe only if it is essentially cost free or can be turned into a profit center, maybe the insurers will do it.”