The Affordable Care Act may not be repealed even if a Republican wins the upcoming presidential election, but we could at least give it a more suitable name. How about the Law of Unintended Consequences?
Though he’ll never say so, President Obama probably agrees that this would be a more accurate moniker, after the shellacking he endured last week over the law’s application to Catholic-affiliated schools, hospitals and other institutions that are not strictly houses of worship.
At the root of the dispute is the ACA’s mandate that most insurance plans offer a loosely defined set of preventive health services without requiring participants to incur co-payments, deductibles or other out-of-pocket costs. The Department of Health and Human Services issued regulations last month classifying contraception as one of the preventive services that must be offered. The law contains an exception for religious institutions, written with the Roman Catholic Church’s objections in mind, but HHS declared that this exception applied narrowly to churches and church affiliates. Church-run schools and hospitals that employ or serve the general population had to offer free contraception.
Or at least, that was the HHS position until the nation’s Catholic hierarchy mounted a sharp political backlash.
Catholic doctrine abhors all forms of contraception except abstinence. Although 28 states already require health insurance to cover birth control, most treat oral contraceptives like any other pharmaceutical. That usually means individuals pay the prescribed co-payment, which depends on whether the drug is a generic or brand name, and on whether it is eligible for preferred pricing as part of the plan’s formulary. A lot of the financial benefit of such coverage comes from the insurer’s ability to negotiate a favorable price for the drug, rather than from the premium paid by the employer.
The Church does not like those state-level requirements either, but it has been willing to live with them. Few, if any, Catholic institutions have dropped their prescription or other health coverage as a result of such mandates.
But the federal mandate would have gone further, forcing Catholic institutions that pay for their employees’ insurance to underwrite contraceptives as part of the plan. Supporters of the HHS rule saw this as a protection for women’s reproductive freedom as well as their general health. The Church saw it as a direct attack on religious liberty.
The controversy quickly mounted to levels that could be dangerous to Obama’s political health. Catholics are an important swing vote in presidential elections, and they form a critical bloc in vital Electoral College states such as Pennsylvania, Ohio, Wisconsin and Florida. Obama’s campaign advisers promptly spread the word that the commander-in-chief would have more to say on the matter.
He said it on Friday, in an announcement that the White House billed as an “accommodation” of Catholic leaders’ concerns. Under the proposed rule, plans offered by religious institutions would not have to directly cover contraception; instead, birth control would be included in a separate but mandatory policy rider. And insurers, not employers or employees, would have to pick up the tab. Obama declared that he was acting “as a citizen and a Christian.”
“I understand that some folks in Washington want to treat this as a political wedge issue,” added the president, whose rhetoric has shown on many occasions that wedge issues are a topic on which he has some expertise.
On health care economics, not so much. Insurers do not have a magical printing press that produces money. Logically, either the president’s position is that insurance company shareholders (including Catholic institutions and individuals) ought to pay for other people’s contraception, or it is that all policyholders (including, of course, Catholic institutions) must pay for the services through their premiums, but we will pretend that they do not.
Logic and faith do not always go together well, however, so the White House came up with a kind of immaculate conception for contraception. Insurers must bear the cost of providing contraceptives, said the White House press statement that accompanied Obama’s appearance in the briefing room, but there won’t be any cost - because contraceptives pay for themselves in other avoided costs. Those avoided costs, by the way, are babies, the avoidance of whom is what the Catholic bishops believe to be immoral in the first place.
Or, as the White House spinners put it in a “fact sheet” - it’s not often we get to argue facts in a religious debate - providing free contraception is “cost neutral.” How did the Obama administration uncover this truth when neither the nation’s insurers nor the employers who pay them ever figured it out? Why have we made our workers pay for contraceptives all these years, when really we could have given pills away for free? Employers of America, wake up! You can cut down your maternity and family leave costs, and do it for nothing.
For that matter, why stop at religious-affiliated institutions? If free contraception is really cost neutral for insurers, why not mandate that insurers hand out free birth control to all Americans? It would be no skin off their backs, according to the president.
Nobody is proposing to do that. I guess this proves there are limits to faith.
Unfortunately, those limits were brushed aside in the battle to enact the Affordable Care Act. Already, the administration has had to hand out more than 1,000 waivers of the law’s provisions just to keep employers from immediately dropping their coverage, and this is well before many of the Act’s more stringent provisions take effect in 2014. Still, many employers are likely to drop their company plans regardless. I stopped paying for my own employees’ health coverage in October 2010, for reasons I have previously discussed in this space.
As it does in so many areas, the Affordable Care Act overreaches on contraception. For one thing, one need not (and I personally do not) share the Catholic position on birth control to recognize that pregnancy is not an illness that needs to be “prevented.” It is a choice that individuals ought to make for themselves.
Nobody needs to get pregnant for lack of access to birth control. The law’s mandate addresses a problem we don’t have. Condoms, a nonprescription item, are already available for free at many public health offices and at low cost at virtually every pharmacy. Condoms don’t have the side effects of oral contraceptives, and they prevent sexually transmitted diseases too. Why give American men the argument that they should not have to buy or use condoms because women can get the pill gratis? Why force any employer, whether religious or otherwise, to pay for a treatment that isn’t actually treating anything?
“Aha!” you might say, “birth control pills are used in medical treatments.” That’s absolutely true. The pills are used to treat irregular periods, polycystic ovary syndrome and insulin resistance, among other things. Other drugs can also be used for such issues. So we should ask why we want to require one form of treatment, which has contraception as a side effect, to be free of co-payments and other out-of-pocket costs, while other treatments are not. This would only skew patients and their doctors toward using birth control pills even when they may not be the best solution medically.
Obama and his fellow Democrats were confident two years ago that the more Americans saw of the Affordable Care Act, the more they would like it. It hasn’t worked out that way. The president almost certainly wants to spend as little time as possible defending the law in his re-election bid, but last week’s controversy shows that the issue is not going to soon disappear. This is, after all, the Law of Unintended Consequences.