Recently, in the case of Korte v. Sebelius, the 7th Circuit Court of Appeals temporarily blocked a policy that would have required Cyril and Jane Korte, the owners of a construction company, to violate their beliefs and provide insurance that covered contraception to their employees.
At least 40 lawsuits challenging Obamacare and the Affordable Care Act’s requirement to provide contraception are now pending. The issue poses a moral dilemma for employers, whether or not they are religious institutions.
Employers might plausibly object to some healthcare services, whether they be contraception, abortion or physician-assisted suicide. While we should respect employers who conscientiously scrutinize what they insure, we should also respect the legal right of employees who want such coverage.
The problem extends well beyond religious objections. Employers and employees may disagree about the value of healthcare regardless of religious beliefs. Some employees may want acupuncture or alternative therapies. Some may want potentially life-saving yet experimental therapies. Others may be offended that their insurance premiums are paying for services they consider useless. Thus, the proposed solution of letting insurers provide contraception free of charge for employees of religious institutions won’t work. It doesn’t address other controversial services or the rights of private employers.
In a pluralistic society, the answer is to let people buy the insurance they prefer. People ought to be able to buy the alternative care plan or the experimental treatment plan. Those desiring contraception should be able to buy that insurance, but colleagues offended by it shouldn’t be forced to have their insurance premiums pay for it. Scrupulous employers shouldn’t have to provide these interventions, either.
Most of us presently get our health insurance from our employers. Though cheaper than individual subscriptions, it also poses a problem. Employers reasonably see themselves as paying for the services in their plans — including those they find objectionable. Since employers need economies of scale: Even large employers — like Georgetown, the largest private employer in Washington D.C. — can offer only two or three plans. Some employees, lucky enough to have values closely matching their employers’, get their desired coverage; while others are saddled with less desirable and even plans that they consider morally reprehensible.
Here is where Obamacare could help. Obamacare operates through health insurance exchanges in which people select from hundreds of plans. Each must meet certain minimal standards, but the plans offered vary considerably.
At present, the Institute of Medicine determines which treatments are “medically necessary.” Contraception is included. On reflection, however, no medical treatment is “medically necessary” if one has strong enough objections and is willing to take the consequences of refusing it. No good reason exists to force someone to buy insurance that includes these items as long as the insurance exchange offers otherwise similar plans both including and excluding them. Only with something like Obamacare’s exchanges with enormous numbers of participants can Americans have a wide range of choices available. Presently, with insurance tied to employment, most of us are forced into limited choices. Either employers must offer what they perceive to be morally controversial or some employees must forgo coverage they desire.
The solution is to abandon employer-based insurance. Transfer to employees the funds that employers presently spend on it. Employees would then — under Obamacare’s mandate — have to buy insurance from the exchanges or pay penalties. Tax policy would need to be adjusted so that premiums would be deductible, making the economic consequences exactly the same as they are now.
Employees presently getting insurance from employers would have many more choices. We could get insured for the services that are important to us and at the same time not be forced to contribute to the funding used to pay for services that we perceived to be morally objectionable or simply useless. Employers would no longer be buying health insurance; they would simply be paying wages.
One might argue that, in the end, it is all the same. A good case can be made, however, that this not only gives employees more choices, but also relieves employers of a moral responsibility for what their employees eventually buy. Employer complicity is no longer at stake — either formal or material. Employees have always had the legal right to use their paychecks for all kinds of activities that could offend employers. Obamacare lays the groundwork for resolving the moral dilemma of employers who object to certain healthcare coverage. Employees are not only made responsible for their moral choices but are, for the first time, given the opportunity to make their insurance match their personal values rather than being forced to conform to the value choices of their employer and the Institute of Medicine.
Robert M. Veatch, Ph.D. is a professor of medical ethics at the Kennedy Institute of Ethics. ENGAGING BIOETHICS appears every other Friday.