News Abortion

Kansas Wants ACLU To Drop Insurance Coverage Lawsuit Because “Women Need To Know What Abortions Cost”

Robin Marty

The basis of the Kansas lawsuit to force insurers not to cover abortions?  Women need to know how spendy their abortions are.

The state of Kansas has spent a hundred thousand dollars trying to defend a law that forbids insurers from allowing coverage of abortions in private insurance. Now, they are trying to wrap that case up, and they have some pretty unique ideas of why the suit filed by the American Civil Liberties Union should be dismissed.

Via NECN.com:

Supporters of the insurance restrictions contended people who oppose abortion shouldn’t be forced to pay for such coverage in a general health plan. Attorneys for Praeger — a Republican who supported abortion rights in the past while serving in the Legislature — said the law promotes childbirth over abortion, lowers insurance costs and protects the consciences of abortion opponents.

But Praeger’s attorneys also suggested the law will lead to better-informed decisions about abortion because deciding to pay for the procedure out-of-pocket or buy an insurance rider “necessarily results in a fuller understanding of the actual costs of an abortion.”

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Of course, that reasoning doesn’t appear to apply to any of the myriad other procedures, surgeries, medications, conditions, and other needs covered by insurance. The argument also neglects the fact that terminating a pregnancy is far less costly than pregnancy and childbirth. 

Analysis Law and Policy

Everything You Need to Know for the Supreme Court Birth Control Case

Jessica Mason Pieklo

The Supreme Court is set to hear the second direct challenge to the Affordable Care Act's birth control benefit Wednesday. Here's what to look out for during oral arguments.

The U.S. Supreme Court is set to hear arguments on March 23 in Zubik v. Burwell, the second direct challenge to the birth control benefit in the Affordable Care Act (ACA). This time, the plaintiffs are religiously affiliated businesses like universities, hospitals, and nursing homes: nonprofits that serve the general population, but have a corporate affiliation to a faith group. Those organizations argue that, like churches, synagogues, and other houses of worship, they should be fully exempt from the law’s requirement that employer-provided health insurance plans cover contraception as preventive care. The cases are part of conservatives’ longstanding attacks on the Affordable Care Act generally, and the birth control benefit specifically—objections to which began as soon as President Obama signed the ACA into law. 

There’s a lot on the line with these cases. Here are the key points law attorneys will be battling over during this week’s arguments, and why they matter.

First, Some Background 

A nonprofit claiming a religious objection to the birth control benefit has two ways to participate in the “accommodation process” and opt out of complying with the law. It can mail a short self-certification form to its health insurance company or third-party administrator, depending on the type of insurance it carries, declaring that the organization is a religiously affiliated nonprofit that “opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered.” The nonprofit can also provide similar notice, along with the name and contact information of its insurer or third-party administrator, directly to the U.S. Department of Health and Human Services (HHS).

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Once either of those two things happens, the federal government will step in and direct insurance coverage for contraception as needed. The employer has nothing more to do with the process at all.

The plaintiffs in Zubik v. Burwell argue that taking either action “triggers” or “facilitates” the ability of their employees to get contraceptive coverage elsewhere. That, the organizations argue, makes them complicit in what they believe to be a sinful act: supporting contraception. They say such an act violates their rights under the Religious Freedom Restoration Act (RFRA).

Unlike in Burwell v. Hobby Lobby, the 2014 case that asked whether secular, for-profit businesses should also have the right to pursue a religious exemption from the birth control benefit, the Roberts Court in Zubik v. Burwell will try to answer the question of whether completing the paperwork required to obtain that religious exemption is itself a substantial burden on religious liberty. If the plaintiffs win in Zubik, it could not only spell the end of the ACA’s birth control benefit; it could further open the door to launching wide-scale religiously based objections to civil rights protections.

So, let’s get into it.

How Badly Does the Government Want to Keep This Fight Up?

The conservative majority ruled in Hobby Lobby that secular, for-profit companies could have access to the accommodation process now being challenged by conservatives in Zubik. In that decision, the Court “presumed without deciding” that the contraception benefit advances compelling government interests, a necessary requirement for laws being challenged in RFRA cases.

A presumption is not the same thing as a ruling, however, and has no value as precedent for future cases, including Zubik.

In Hobby Lobby, Kennedy stated in his controlling concurrence the benefit furthers “a compelling [government] interest in the health of female employees”; the four liberals agreed with the sentiment, though Justice Ruth Bader Ginsburg, in her dissent, took a much stronger stance in its favor. If Kennedy changes his mind in Zubik, he’s going to have to explain why.

Compelling government interest is only one part of the equation, however. To successfully defend the benefit, the Obama administration is also going to have to show that it is narrowly tailored to further that compelling government interest. In Hobby Lobby, Kennedy presumed that the very fact that the benefit has an accommodation process and religious exemptions shows that it is narrowly tailored.

Again, this is a presumption on Kennedy’s part. The Court did not rule that the benefit is narrowly tailored in Hobby Lobby, so it is not bound by that finding in Zubik. In terms of presumptions, though, it was a pretty big one, on which Kennedy hung much of the rest of his concurrence.

But if there is a prong of the analysis conservatives feel they stand a chance of winning, it is clearly this “narrowly tailored” one. They argue that if providing contraception coverage is so important to the federal government, it should just provide that coverage directly and not involve employers at all. Because the Court never definitively ruled in Hobby Lobby that the benefit is narrowly tailored, presenting a specific alternative in the form of direct coverage for contraception is a smart tactical move by the challengers.

Kennedy’s opinion in Hobby Lobby suggests he won’t bite. But considering, too, the earlier interim orders by the Roberts Court preventing the administration from enforcing penalties against nonprofits for not complying with the accommodation process, any open question presents a way for conservatives to take a whack at the benefit. And if they do so successfully, the Obama administration is going to have to decide if it wants to amend the benefit yet again to try and appease their objections, provide the contraception itself directly through some as-yet-undescribed accommodation-to-the-accommodation, or give up on the coverage all together.

Which option do you think conservatives are gunning for?

It’s Not Just Any Burden

In addition to answering the “compelling government interest” and “narrowly tailored” questions, the Court in Zubik will have to address the matter of “substantial burdens.”

RFRA’s provisions don’t apply to simply any burden on religious rights. They apply only to substantial burdens on religious rights. The nonprofits claiming a RFRA violation here insist that the question of whether or not a law places a substantial burden on religious rights is a subjective one for the religious objector to answer, not an objective one for the courts. As soon as an objector says a law-created burden counts as substantial, they argue, it is substantial—as long as the objector is sincere in that religious belief.

The federal courts largely have rejected this line of argument, and for good reason. If accepted, it would provide an enormous loophole for businesses to seek accommodations to other civil rights requirements, like not discriminating in pay on the basis of gender, or not refusing to work as a photographer at same-sex weddings. But before Hobby Lobby, federal courts largely had rejected claims that secular, for-profit businesses could even raise religious objections to the birth control benefit—and look how that turned out. In addition, at least one federal court is willing to consider organizations’ moral objections to the benefit as well as religious ones, threatening to render RFRA entirely meaningless except as a weapon for conservatives to use to try and thwart civil rights advancements.

The Women Justices Going in Hard for the Benefit

Like we saw earlier this month in Whole Woman’s Health v. Hellerstedthaving women on the bench makes a difference in the tone and tenor of the questions when reproductive rights are before the Court. The birth control cases have been no different.

In Hobby Lobby, Justice Ginsburg made it clear that if the conservative male justices were going to “presume without deciding” the government’s compelling interest in advancing contraception coverage, she was ready for whenever the question arose again with proof of the public good contraceptive access advances.

Writing for the dissenters, Ginsburg emphasized that “the Government has shown that the [benefit] furthers compelling interests in public health and women’s well-being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence.” Ginsburg then provided a list of the myriad of benefits women derive from contraception access.

Just days after the Court issued its decision in Hobby Lobby, it ruled Wheaton College did not have to comply with the very accommodation process it had just extended to for-profits, in one of the first religious objector cases to land before the Court. It was a temporary ruling while the underlying litigation progressed, but produced a blistering dissent.

“Those who are bound by our decisions usually believe they can take us at our word,” Justice Sonia Sotomayor wrote for the dissent, joined by all three female justices. “Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position,” wrote Sotomayor. “This action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.”

Sotomayor’s dissent reveals a lot about the split among the justices in Hobby Lobby. Much of Kennedy’s controlling opinion in Hobby Lobby was about bridging the gap between the conservative wing of the Court—willing to open the floodgates for nearly all types of corporations to pose religious objections to regulatory actions—and the dissenting liberal justices—who, rightly, saw the arguments in Hobby Lobby as a ruse for conservatives to expand their attacks on all forms of civil rights protections. Kennedy tried to assure the liberal justices it was a narrow decision. His decision to side with the conservatives a few days later in Wheaton College betrayed that assurance, as Sotomayor’s dissent makes clear.

With the Court now split 4 to 4, the tension along the fault line between the ruling in Hobby Lobby and the Court’s retreat in Wheaton College will likely be palpable in Zubik. The women on the Court, along with Justice Stephen Breyer, will keep the pressure on Kennedy to stand by his analysis in Hobby Lobby; the conservative justices will no doubt pressure him as well, leaning hard on his discomfort with government intrusions into religious belief, actual or perceived.

Will Kennedy listen to those directly affected by the challenges to the birth control benefit? Or will he buy the specious arguments made by conservative employers: that their religious rights include the right to block their students and employees from accessing contraception coverage under the law?

The Court likely won’t rule until this summer. With the battle to replace the late Justice Scalia only heating up, the possibility of a 4-4 split in Zubik is real. If the Court deadlocks, there will be no definitive ruling on the birth control benefit. Nor will there be any answers at all to the broader questions of whether contraceptive coverage furthers government interest, and the limit, if any, to how far conservatives are willing to stretch RFRA to try and stymie civil rights progress. Such a split would leave in place the appellate court rulings, which have almost unanimously supported the Obama administration and the accommodation process. Practically speaking, it would mean that, eventually, these cases would find their way before the Court again, when it has a full bench of nine members and can issue a definitive ruling.

There is also the possibility that the Court rules 5 to 3 in favor of the Obama administration and the accommodation process. As Kennedy’s opinion in Hobby Lobby demonstrates, he is quite capable of distinguishing real government intrusions into religious beliefs from imaginary ones.

Will the oral arguments offer any insight here? Maybe. But only if Kennedy tips his hand.

News Law and Policy

Insurance Company Denied Coverage to Gay Man Because He Takes HIV Medication

Jessica Mason Pieklo

A complaint filed with the Massachusetts Commission Against Discrimination accuses Mutual of Omaha of denying long-term care insurance to a man taking HIV medications.

Despite non-discrimination requirements in the Affordable Care Act and other civil rights protections, attorneys with Gay & Lesbian Advocates & Defenders (GLAD) claim that the Mutual of Omaha insurance company discriminated when it denied a gay man long-term care insurance because he is taking HIV medication.

The allegations were made in a claim filed with the Massachusetts Commission Against Discrimination (MCAD). Mutual of Omaha denied long-term care insurance to the plaintiff, identified in the complaint as John Doe, because he is taking Truvada, according to the complaint.

Truvada, a form of PrEP or pre-exposure prophylaxis, is a medication prescribed to HIV-negative people to prevent the transmission of HIV. This is the first lawsuit in the country challenging discrimination against a person on PrEP.

Truvada was first approved by the Food and Drug Administration in 2004 as a treatment for HIV and then again in 2012 as a method of preventing HIV infection. Public health experts applauded the treatment as a major medical breakthrough in HIV prevention that has the potential to end the epidemic.

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The complaint describes how Doe, a Boston man, applied for long-term care insurance with Mutual of Omaha in November 2014. Long-term care insurance pays for some or all of the costs of nursing homes, assisted living facilities, and home health care for people unable to take care of themselves. Long-term care insurance is a common part of end-of-life planning.

Mutual of Omaha first denied Doe’s application in February 2015, openly stating that the reason for the denial was that he was taking Truvada. Doe appealed the denial, but Mutual of Omaha rejected his appeal in April 2015.

“Mutual of Omaha’s denial is nonsensical,” Bennett Klein, senior attorney and AIDS Law Project Director at GLAD, said in a statement. “If our client were not taking Truvada, not protecting his health and the health of others, he would have received the insurance.”

The claim filed with MCAD alleges that Mutual of Omaha illegally denied Doe access to a place of public accommodation based on sexual orientation and on disability. Disability anti-discrimination laws protect those who are treated adversely based on false beliefs about a health condition.

“We should be well beyond the days when insurers make decisions based on fear and stereotypes about HIV,” Klein continued. “The assumption is that gay male sexuality is inherently risky and unhealthy, and that’s just wrong.”

The Centers for Disease Control and Prevention estimates that PrEPs like Truvada can reduce the risk of HIV transmission by up to 92 percent while a study by researchers at Kaiser Permanente San Francisco Medical Center found no new HIV infections among 657 people of PrEP over a two-and-a-half year period.

“I was being responsible and doing the right thing,” the plaintiff said in a statement. “Insurance companies should be begging everyone to take Truvada—not discouraging them.”

Mutual of Omaha has not yet responded to the complaint.