The headline question above is simply one of many that cascade quickly from the Supreme Court's majority decision in Burwell v. Hobby Lobby last Monday.
Even if the Supreme Court avoids the minefield that Justice Ginsburg referenced in her dissent, the controversial decision has definitely thrown open Pandora's proverbial box. If not legally, certainly in the mind of public opinion.
Perhaps the biggest single fault line is the accident of American history ‒ Employer Sponsored Insurance (ESI). Even President Obama has openly acknowledged this artifact of legislation dating back to World War II.
"It's a historical accident that in this country health care is attached to employers." President Barack Obama ‒ Clinton Global Initiative Conference ‒ September, 2013
Some of the other questions appear loaded with galvanizing political opinion and dissent ‒ especially as it relates to personal choice around reproductive health. By some accounts, this issue does appear to favor the Democrats ‒ especially in the upcoming elections cycles.
It was a revealing convergence Monday when the five-member conservative Supreme Court majority delivered the Hobby Lobby contraception decision even as President Obama announced that House Republicans had officially shelved immigration reform. Both disputes reaffirmed the GOP's identity as the champion of the forces most resistant to the profound demographic and cultural dynamics reshaping American life ‒ and Democrats as the voice of those who most welcome these changes. And both clashes captured a parallel shift: While Republicans took the offense on most cultural arguments through the late 20th century, now Democrats from Obama on down are mostly pressing these issues, confident that they represent an expanding majority of public opinion. Veteran pollster Stanley B. Greenberg captures this almost unprecedented Democratic assurance when he declares flatly: "Republicans are on the losing side of all of these trends." Ronald Brownstein ‒ Why Democrats Are So Confident ‒ National Journal
Some of the other questions uncovered by Hobby Lobby are mechanical. Who pays for mandated health coverage that can now be excluded and what are the resulting HR obligations around disclosing religious beliefs?
In this category, Monday's decision became even murkier by Thursday when the Supreme Court granted injunctive relief to Wheaton College. Wheaton's objection was submitting the requisite 2-page (EBSA 700) form that simply acknowledges an employers intent to take a religious exemption from reproductive health coverage as mandated by the Affordable Care Act.
Here, similarly, the filing of the self-certification form merely indicates to the third-party administrator that a religious nonprofit has chosen to invoke the religious accommodation. If a religious nonprofit chooses not to pay for contraceptive services, it is true that someone else may have a legal obligation to pay for them, just as someone may have to go to war in place of the conscientious objector. But the obligation to provide contraceptive services, like the obligation to serve in the Armed Forces, arises not from the filing of the form but from the underlying law and regulations. Supreme Court Justice Sonia Sotomayor ‒ Wheaton College v. Burwell ‒ On Application for Injuction (page 12)
Beyond the simple filing of the EBSA form are the unfolding HR implications ‒ some of which were posed by former corporate litigator Victoria Pynchon in her article ‒ 5 Questions Every Employer Must Answer After Hobby Lobby:
* Should you declare your religion in the hiring process?
* Should you declare your religion to your existing employees and customers?
* Might your group insurance rates increase if you decide to deprive your female employees of comprehensive reproductive health care?
* Are you prepared for pregnancy related attrition?
* Can you now refuse to hire or serve gays?
While these are all valid questions, the larger issue remains the role (and individual exposure) of that historical accident ‒ Employer Sponsored Insurance. While ESI wasn't legislation itself, it was the direct consequence of the Economic Stabilization Act of 1942 which was enacted during World War II.
Today, the battle lines that appear to be forming around ESI aren't just employers with strong religious convictions either. Many employees are equally frustrated by personal privacy issues and cost-shifting that are now attached to their employer's health benefits.
Earlier this year, a cashier filed suit against CVS for requiring a "wellness review" which required (among other things) personal health information about weight and sexual activity. Failure to participate resulted in a $600 annual premium penalty.
Last year, Penn State withdrew their wellness program after a firestorm of protest by faculty. The program ‒ called "Take Care of Your Health" ‒ had similar questions around personal health and resulted in a $1,200 annual premium penalty for failure to participate (or $2,400 annually for employees with a covered spouse or domestic partner on the plan).
What's more, they argued, the online questionnaire required them to give intimate information about their medical history, finances, marital status and job-related stress to an outside company, WebMD Health Services, a health management firm that operates separately from the popular consumer site, WebMD.com. On Campus, A Faculty Uprising Over Personal Data ‒ The New York Times ‒ September, 2013
If health benefits aren't involved ‒ the high-cost of healthcare has been openly linked to reductions in other employee benefits like retirement plans.
"Two things that happened in 2012. We had two AOL-ers that had distressed babies that were born that we paid a million dollars each to make sure those babies were OK in general. And those are the things that add up into our benefits cost. So when we had the final decision about what benefits to cut because of the increased healthcare costs, we made the decision, and I made the decision, to basically change the 401(k) plan." AOL's Tim Armstrong Responds to 401(k) Controversy in Internal Memo to Employees – CNBC (video here)
The issue of the employers role in health benefits was also highlighted by Aetna's CEO Mark Bertolini who described the "iron triangle of health" earlier this year during his keynote at the major healthcare IT event of the year ‒ HIMSS.
So I want to talk about the infamous iron triangle in healthcare – access, quality and cost. The problem with this thing as you can see is that between consumers and employers it's all about cost and access, between employers and providers it's about quality and cost and between providers and consumers it's about access and quality. It's impossible to solve this equation.
Well the way to solve an equation with too many variables is to eliminate some of those variables. So here's my new definition of keep what you have. It's about the individual and its their doctor and their hospital. It's not about the employer, it's not about the health plan – it's about this relationship. It's about access and quality – and if we do access and quality right – we'll take care of cost. This is the new model. This is really the only model that works. Mark Bertolini ‒ Aetna CEO ‒ HIMMS 2014 Keynote
As court cases and consequences unfold, the accidental artifact of World War II – Employer Sponsored Health Insurance – does seem poised for more of a national debate.
And what kind of health "insurance" have Americans gotten under this strange arrangement? Once again, uniquely in the industrialized world, it has been ephemeral coverage that is lost with the job or changed at the employer's whim. Citizens in any other industrialized country have permanent, portable insurance not tied to a particular job in a particular country. The Illogic of Employer Sponsored Health Insurance ‒ Ewe Reinhardt ‒ The Upshot, July 2014
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