Tuesday, July 1, 2014

The most interesting thing about the Hobby Lobby discussion is . . .

No, not that the Democrats are exaggerating the significance of the ruling so that they can push the "War on Women" storyline.  Nor, in contrast, the fact that the ruling is fairly narrow by virtue of the Religious Freedom Restoration Act wording that the government has to use the "the least restrictive means of achieving a compelling governmental interest."  See Ann Althouse's write-up, among others, on the topic; she draws a contrast between this and anti-discrimination laws to explain.

Look, I'm not even going to debate the issue of whether contraception is a "preventive treatment" and whether that means pregnancy is a disease, or whether it's a consumer product.

But everyone's flipping out:  "OMG, what if the Jehovah's Witnesses decided it violated their religious principles to cover blood transfusions?  Companies can now do whatever they want as long as they claim it's in their religion!"  (See here for the becoming-famous Ginsberg line.)

And it occurred to me that this "worst case scenario" is actually fairly instructive.

Imagine if there were a significant number of Jehovah's Witnesses running companies, or closely-held corporations, and that they believed that if they provided health care coverage to their employees which included blood transfusions, they'd be enabling a sin.  I skimmed the article on the topic in Wikipedia but it's not clear to me if they view this as something required only of their adherents, like keeping kosher or observing the Sabbath for Jews, or a general moral code applicable to everyone.

But let's assume its the latter.

It's still not a problem.  Blood transfusions are a component of medical treatment -- after an accident, in the course of surgery, and so on.  It shouldn't be that difficult to split out the claims value of the blood transfusion component of such surgeries, based on the mountain of data that insurers have available to them.  Then an insurer could design a standard policy which excludes transfusions, and an additional rider which includes them, and there shouldn't be any risk of anti-selection in the rider-policies because this is true insurance, for serious medical needs, the cost should be relatively minor, and yet everyone working at a JW-employer should have the common sense to know, when the mailing arrives from the insurance company, to select the "blood transfusion" rider.

But imagine a "contraception" rider -- it doesn't work, does it?  Who would choose a contraception rider?  Pretty much only those who know that they'll be using contraception, and that the contraceptive of their choice is more expensive than average, so that, even with an at-cost policy, they figure they'll save money.  In other words, there'll be an immediate death spiral, as the IUD users sign up but not the generic-pill users.

Which all just highlights the problem with contraception being a part of an insurance policy, when it's a known, predictable, and, for most people a managably-small expense.


8 comments:

  1. For a very interesting legal commentary on this, I would point you to the blog of Judge Richard G. Kopf of the US District Court for the District of Nebraska. He has a major issue with the idea of closely held corporations being distinguished from other corporations for religious protection. Do read the comments as well.

    http://herculesandtheumpire.com/2014/07/01/isnt-the-loosey-goosey-closely-held-distinction-in-the-hobby-lobby-cases-intellectually-incoherent/

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    1. I tend to agree with "Peter H" in the comments -- the difference between closely held and public corporations is that the former is free from the requirement to maximize shareholder value.

      Given the realities of business and commerce, it is all but impossible to be even a very small business without incorporating, so I find this an important consideration in the case.

      - David

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    2. That was me, though I don't hold the position I argued. I gave that defense as a devil's advocate thing since the judge had expressly asked me to elsewhere in the thread.

      If you want the shield of limited liability, then you have to take with it the fact of limited purpose. If the business is just a furtherance of you personally, then there's no public policy reason that you should be personally immune from responsibility for its mistakes and misdeeds.

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    3. The judge is correct that it's wrong to distinguish between closely held and publicly held corporations for this purpose or any other purpose. A corporation is a legal entity that has the same legal rights a person. This was a precedent upheld in the Citizens United case, and it's a precedent that goes back at least to John Marshall.

      A corporation is just an institution that some group of persons form, choose to belong to, and which the state agrees to relate to collectively as if it were a person. Its rights proceed from the fact that each of its members chooses to belong to the corporation, and that each of them has human rights. If this case involved a sole proprietor, it wouldn't be an issue; and the issues aren't any different if the plaintiff is a corporation, whether profit-seeking, publicly held, or any other characteristic.

      The discussion of a corporation being profit-seeking, publicly held, or whatever else is a distraction and a thinly veiled pretense for persecution. Does a person trying to make a profit not have the same rights as a person who has renounced private property? It's really got nothing to do with anything, just a meaningless distinction that was introduced for income tax purposes. Corporations, regardless of their tax status, as groups of individuals, have a right to define their governing principles, to define them in their charters, to act based on them, and to expect their members to live by them.

      Don't get distracted by all of the mud in the dialogue.

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  2. Jane, I like your actuarial-based common sense that distinguishes between health care that should be covered by insurance versus health care costs that are recurring and really only prepaid medicine/pharmacy/etc.

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  3. Exasperated writes:
    Being a moderate and centrist, what goes on in the mind of an ideologue is a great puzzlement to me. I don’t understand the lack of discernment, the inability to argue an issue from multiple POVs, and the reliance on contrivances. I guess all the adolescent drama must serve as some sort of signaling to each other rather than promoting their side to the public. Surely, they can’t think that Indies and others can’t see through the blatant BS and aren’t turned off by it. I am in sync with some Althouse posters that the partisan histrionics on this issue is particularly irksome. I know that I am offended by the subtext that women are hapless, hopeless and helpless. Good grief, my mother had a prescription for birth control in the 60s, and of course she paid for it. In fact, back then, many insurances didn’t even cover normal, uncomplicated deliveries, since insurance was practical and largely for catastrophic and unforeseen medical issues.
    I guess I sorta understand why HRC would make an embarrassing spectacle of herself to pander to the base, but Ginsburg, I don’t get. Her writing was bizarre; it was if she hadn’t done her homework and hadn’t familiarized herself with the RFRA. It seems to me that the legislature had already covered most of the concerns, like you mentioned. For the record, most of my input on this comes from the Althouse blog

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  4. To be clear the majority opinion, I believe, explicitly states that this ruling is for the contraceptive mandate only.

    Justice Alito: "This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g. for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer's religious beliefs."

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  5. The most frustrating thing about popular commentary on this is that a lot of people suddenly seem to hate the fact that corporations are legal persons and think that this is somehow a new development. Never mind that because corporations are legal persons, you have an entity to sue if need be, and you have an entity to contract with in order to offer your services as an employee.

    I'm not sure why the obvious solution seems to be to deny that corporate personhood exists (but only in regards to results we don't like), rather than decouple the employer - health insurance relationship altogether.

    I get that it's a raw deal if you accept employment expecting the benefits you were promised, only to have your employer unilaterally change your benefits, but that's unfortunately the risk you run if you are dependent on someone else to provide something. You are in a similar (but much worse) position if you choose to live your life in such a way as to be eternally dependent on public benefits(*) - when the money runs out, you're screwed.

    (*) I am excluding people that for whatever reason are temporarily dependent while they pull their lives together.

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