Seven states banded together in a lawsuit to block President Obama’s controversial preventive medicine policy which mandates all employers and institutions who provide insurance to their employees and students must supply contraceptives, abortifacients, and sterilization services without co-pays.
The attorneys general of Florida, Michigan, Nebraska, Ohio, Oklahoma, South Carolina, and Texas challenged the policy, filing in the U.S. District Court in Nebraska on February 24. Nebraska Republican Attorney General Jon Bruning coordinated the suit, which follows other lawsuits being brought by nonprofit organizations, such as the Becket Fund for Religious Liberty.
“This violation of the First Amendment is a threat to every American, regardless of religious faith,” Bruning said in a statement. “We will not stand idly by while our constitutionally guaranteed liberties are discarded by an administration that has sworn to uphold them.”
Challenge on Constitutional, RFRA Grounds
Jonathan Ingram, an attorney and health care policy analyst at the Illinois Policy Institute, says he expects the suit to be successful because the requirement was a clear violation of religious liberty and personal choice and made no economic sense for either the government or individuals.
“In January, the Supreme Court unanimously affirmed that religious employers are entitled to greater leeway when it comes to labor issues. Even if this mandate is constitutional, it seems to violate the Religious Freedom Restoration Act (RFRA), which provides additional protection to religious organizations,” Ingram said.
“The administration would be hard pressed to defend the notion that this is the least restrictive means of achieving a compelling government interest,” added Ingram.
Susan Herold, a constitutional attorney in St Louis, Missouri, said the government will be forced to demonstrate a “compelling interest” for the mandate under the RFRA’s requirements.
“Forcing an organization to do something that clearly violates its religious precepts strikes me as a violation of the Free Exercise Clause,” Herold said. “But additionally, the RFRA prohibits the government from substantially burdening a person’s free exercise of their religion. It requires strict scrutiny of any alleged violation of the Free Exercise Clause, meaning the government has to demonstrate that the law serves a compelling governmental interest. Additionally, it must show that the law does so in the least restrictive way possible.”
‘Frightening Centralization of Power’
According to Jeffrey Anderson, senior fellow in health care studies at the Pacific Research Institute, the Obama administration’s mandate is a fundamental violation of liberty.
“No one should have to follow these rules. This is a violation not only of religious liberty but of liberty more generally,” Anderson said. “If a store owner wants to offer his or her employees a choice of insurance policies, some covering contraception and abortion pills, some not, why shouldn’t he or she be able to do so? If an employee of that store wants to choose a policy that doesn’t cover these things, or which doesn’t cover them without copays, why shouldn’t that employee be able to choose such a policy? Why should both the employer and the employee be banned by federal law from such a simple act of making a free and reasonable choice in a free society?”
“This is a particularly gross and egregious overreach by the federal government at the expense of every American’s liberty,” said Anderson. “It’s a prime example of the frightening centralization of power and the senseless politicizing of medicine that would become the norm if Obamacare isn’t repealed.”
Costly for Employers, Insurers
Edmund Haislmaier, senior research fellow for health policy studies at The Heritage Foundation, notes that this latest mandate also represents a first step toward piling on additional costs for employers under Obama’s health care law.
“While in this case the problem is a conscience problem, there are going to be other of these preventive services mandates along these lines that are going to be economic problems or legal jeopardy problems for the employer. So some of this stuff is going to be quite costly for employers and insurers,” Haislmaier said.
Haislmaier also notes preventive care should not be seen as always being fiscally wise, because it’s expensive to use insurance to pay for regularly occurring medical expenses, such as contraception costs. “You can do it, but it’s going to be costly,” he says.
“There is a popular myth among politicians of both parties that spending more on preventive care will save the health system money. In fact, it does not. What it does do is keep some people healthier longer, but that means they contract something else that costs money. So spending money on preventive care may be good for an individual patient, but for the health system as a whole it is not going to reduce health expenditures,” Haislmaier said.
Increased Mandates, Increased Costs
Noting the Obama administration has repeatedly described the mandate as providing “free” contraception, Herold disputes this definition as “fundamentally inaccurate.”
“It’s not free,” Herold said, “even if there’s no co-pay charged at the time the employee actually makes the purchase. One way or another, someone is paying for it. Whether it’s through premiums paid by the employee, the employer, or a combination thereof, it isn’t free.”
Ingram notes the costs of government mandates such as this one are passed on to other consumers in the form of increased premium costs.
“Consumers should be able to buy policies that meet their families’ needs, not the needs of bureaucrats in Washington. Last year, there were 2,262 state benefit mandates. This number is only going to rise as ObamaCare begins to kick in. Mandated benefits could increase your premiums anywhere from 10 to 50 percent,” Ingram said.