September 1 update: On August 31, 2015, the Centers for Medicare and Medicaid Services (CMS) posted at its REGTAP website a series of questions and answers focused on its Health Insurance Casework System. These Q&As mainly deal with technical issues relating to casework processing, but several of them are of more general interest.
First, the guidance states that CMS does not require insurers that participate in the federally facilitated marketplace to have their toll-free call centers open at particular hours, but encourages insurers to follow Medicare Advantage best practice, which is to have call centers open from 8:00 am to 8:00 pm seven days a week.
Second, the guidance clarifies that enrollees who lose eligibility for premium tax credits because of failure to resolve household income data matching issues but who subsequently return to the marketplace and update their income information can be prospectively reenrolled through a special enrollment period, but cannot be retroactively reenrolled unless they successfully appeal their eligibility determination.
Finally, the guidance acknowledges that functionality issues are keeping consumers from updating their email accounts with the marketplace when they cannot access the email account through which they enrolled, but that consumers should be able to update their email addresses with their qualified health plan insurer.
Original Post
On August 31, 2015, yet another federal court decided yet another case challenging the contraceptive mandate. March for Life v. Burwell, however, is different than the dozens of cases that the federal courts have already decided. First, all of the cases decided so far have been have involved organizations (non-profit or for-profit) that objected to providing contraceptive coverage for their employees for religious reasons.
March for Life, the organizational plaintiff in the case, is a secular organization that objects to the coverage of contraceptives that it believes to be abortifacients for secular, non-religious-reasons. Second, the two individual plaintiffs in the case are employees of March for Life who object to having to obtain health insurance that covers abortifacients for personal religious reasons. Earlier cases have involved employers who do not want to cover all or some contraceptives — not employees who object to such coverage.
Judge Richard Leon granted summary judgment both for March for Life and for the two employees on three of the four claims they raised. Current federal regulations permit churches and similar religious organizations to offer their employees health benefits that exclude contraceptive coverage. This exemption is different from the religious organization accommodation, which has been litigated in most of the contraceptive cases.
The religious organization accommodation applies to religious hospitals, universities, and charities and other non-church religious organizations. This accommodation excuses these organizations from providing contraceptive coverage to their employees and students, but requires their insurers and third party administrators to provide the coverage instead. Churches and similar organizations are excused from providing any contraceptive coverage at all, however, based on the rationale that these organizations are likely to employ individuals who share their religious objections to contraceptives.
Judge Leon held that the government could not rationally distinguish between churches and secular organizations like March for Life, which employs only individuals who share its anti-abortifacient views. If the government’s rationale is that employees of churches are likely to object to coverage of contraceptives, it cannot refuse to accommodate non-religious organizations all of whose employees share the same objection. Judge Leon stated, therefore that the “Mandate violates the equal protection clause of the Fifth Amendment and must be struck down as unconstitutional.”
The Application Of The Religious Freedom Restoration Act
Judge Leon went on to consider the claims of two employees that the contraceptive mandate violated their rights under the Religious Freedom Restoration Act (RFRA) and the First Amendment free exercise clause. Unlike March for Life, the two employees asserted that their objections to the law were religious, and thus protected by RFRA and the First Amendment.
Applying the by now familiar RFRA law, he first held that the contraceptive mandate substantially burdens the rights of the employees because they cannot not obtain health insurance that does not cover contraceptives. Judge Leon rejected the government’s argument that the plaintiffs were not injured by the law because they did not have to use covered contraceptives. The government must, he held, accept the plaintiffs’ beliefs that it is morally wrong for them to participate at all in a health plan that covered contraceptives, even if they themselves do not use the coverage.
Although the employees are not subject to the employer mandate that requires that contraceptive coverage be available, they are subject to the individual mandate. The only insurance coverage they can obtain through either their employer or in the individual market must cover contraceptives. As the individual mandate requires that they be insured, they would have to violate their religious beliefs to comply.
Although Judge Leon acknowledged that the D.C. Circuit had recognized that the contraceptive mandate serves a compelling governmental interest of ensuring that employees who want contraceptive coverage can have it, he held that there is no compelling interest in making the individual plaintiffs, who did not want contraceptive coverage, purchase it. He also held that the interests of the plaintiffs could be easily accommodated, as their insurer is willing to sell them coverage without contraceptive coverage if the government would let it. The government would not have to require insurers to offer such coverage. It would merely have to let them sell it if they chose to do so. Insurers, Judge Leon believed, would be unlikely to offer coverage with too many exceptions because it would be too burdensome for them to do so.
Judge Leon ruled against the individual plaintiffs on their claim that the contraceptive rule violates the Free Exercise clause of the Constitution, bowing to governing D.C.Circuit precedent in the Priests for Life v. US Department of Health and Human Services case, which held that the contraceptive mandate is constitutional as a religiously neutral law of general applicability.
Finally, Judge Leon held that the regulation violates the Administrative Procedure Act because it otherwise violates the federal law and Constitution. Judge Leon entered an injunction preventing the government from enforcing the contraceptive mandate against either March for Life or the individual plaintiffs.
Consequences And The Equal Protection Clause
This case will certainly be appealed, but if it holds up and if other cases follow, the government seems to be stuck in a situation where if it attempts to accommodate religious objections to regulatory requirements under RFRA, it must then under the Equal Protection Clause accommodate similar secular philosophical objections as well. The government must also allow individuals who have a religious objection to an insurance mandate to opt out as long as they can find an insurer that will sell them the coverage they prefer. Presumably, under the Equal Protection Clause, a similar right would then have to then be allowed to individuals who objected to the same coverage for secular reasons.
It is hard to see how we can have a uniform system of insurance coverage if any employer can opt out of a regulatory requirement for its own philosophical reasons and any insurer that wants to sell individuals coverage that complies with their religious or philosophical beliefs can opt out of regulatory requirements that would otherwise apply.
It is particularly troublesome that insurers would be allowed to decide which religious or philosophical beliefs to accommodate and which regulatory requirements to ignore. What if someone claimed that his philosophy prohibited him from purchasing a plan that also covered other people with preexisting conditions? This case is certain to generate a lot of law review articles and may possibly create a very problematic regulatory environment.
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