Yet More on the Birth Control Brouhaha
I know that the horse is dead (and the amendment defeated) but I want to jump back into the breach yet again to talk about the issue of requiring the inclusion of birth control in insurance benefits. Just a short while ago, an amendment (to a transportation bill!) was defeated in the United States Senate. The amendment offered by Sen. Roy Blunt (R-Missouri) would have allowed any employer to opt out of the requirement to cover birth control in order to respect that employer’s religious views. At least that’s how the Blunt Amendment has been repeatedly described over the last few days. But guess what? The Blunt Amendment went much further than that. Much further.
Let’s look at some of the operative language from the Blunt Amendment (I’ve pulled the relevant text out of the longer amendment and put it in bullet points to try to make it easier to read):
- A health plan shall not be considered to have failed to provide the essential health benefits package described in [the Public Health Service Act] … on the basis that it declines to provide coverage for specific items or services because (i) providing coverage (or, in the case of a sponsor of a group health plan, paying for coverage) of such specific items or services is contrary to the religious beliefs or moral convictions of the sponsor, issuer [et al]; or (ii) such coverage (in the case of individual coverage) is contrary to the religious beliefs or moral convictions of the purchaser or beneficiary of the coverage.
- Nothing … shall be construed to require an individual or institutional health care provider, or authorize a health plan to require a provider, to provide, participate in, or refer for a specific item or service contrary to the provider’s religious beliefs or moral convictions. … [A] health plan shall not be considered to have failed to provide timely or other access to items or services … or to fulfill any other requirement … because it has respected the rights of conscience of such provider….
Yeah, I know that is quite a mouthful. Welcome to the world of federal statutes.
So let’s break the problems with this language up into some bite-sized chunks, shall we. First, did you notice anything interesting about the exemption for religious beliefs? Right. It’s not just religious beliefs that are exempted. “Moral convictions” are also reasons for which coverage can be exempted. Thus, query whether an employer who is also a Tea Party activist can exempt all coverage because of the employer’s “moral convictions” that the government has overstepped the bounds of the 10th Amendment? Or what if the employer’s “moral convictions” tell him that sex outside of wedlock is immoral and therefore refuses to provide coverage for any matter relating to sex (or … gasp! … pregnancy and childcare) for a woman who is not married? Might an atheist have “moral convictions” against paying for treatment in a religious-affiliated hospital? And dare I ask whether coverage could be denied to someone on the basis of adherence to a certain religion if the employer views that religion as “immoral”?
Note also that the Blunt Amendment never mentions birth control, contraception, or even abortion. It would have applied to any “specific item or service”.
I think that I’ve already discussed the issue of religious-based exemptions in my prior posts (The Birth Control Brouhaha, More on the Birth Control Brouhaha, and Still More on the Birth Control Brouhaha), so I’m not going to rehash those arguments here. But I did think of one other point worth making. I remember when my grandfather was in the hospital. It was a Catholic hospital. There was a crucifix on the wall with Jesus looking down at my grandfather 24/7. He expressed discomfort at this. My own religious beliefs (and certainly those that my grandfather held) don’t include Jesus. So query: As an employer, could I refuse to pay for services provided by Catholic or other religious-affiliated hospitals if they have crucifixes in the rooms?
Furthermore, if we’re now opening up adherence to laws of general applicability to the question of a person’s “moral convictions”, down which slippery slopes might that lead? What if I’m morally opposed to war? The death penalty? If my moral convictions tell me that abortion is evil, does that give me the right to “opt out” of laws that prevent me from doing harm to an abortion provider? The possibilities are endless … endlessly complicated … and endlessly horrifying.
I also want to note one other thing about the Blunt Amendment: It doesn’t just speak to a health plan not covering a service. It also allows a health care provider to not participate in or refer for a specific service. Thus, if a OB/GYN who is opposed to an abortion knows that a pregnant woman may die if she doesn’t get an abortion, he may nevertheless refuse to refer her to a doctor that might perform the procedure. And a doctor who has a religious belief or moral conviction opposed to birth control could “opt out” of prescribing birth control. Or query a doctor who believes that obesity is a sign of moral failing; could that doctor opt out of giving proper treatment to an obese patient? Could a doctor who happens to be a Scientologist refuse to refer a patient for necessary mental health treatment?
Could a religious hospital opt-out of treating a patient that didn’t share that hospital’s religious beliefs or moral convictions (i.e., could a Catholic hospital decide to only treat Catholic or Christian patients?) Could a hospital opt-out of treating a patient accused of a crime that included a component of perceived immorality?
And, though I’ve said it before, I think that it’s worth remembering the most critical point of all with regard to this discussion: The proposed regulations do not require anyone to use birth control.
Oh, and before I quit, I did want to mention briefly just how far … um … right … the right has gone on this issue. Yesterday, the titular leader of the American right, Rush Limbaugh, referred to a law student who wants birth control as a slut. That’s right. A woman who wants to have sex and not get pregnant is a slut. So says Rush.
And one final thought: Can I, as an employer elect to exclude coverage for Viagra and similar drugs because it is against my moral convictions to help a man get an erection but not help a woman keep from getting pregnant?