Employer exemptions can create gaps in preventive services

The Supreme Court of the United States recently ruled, by a narrow-margin vote of 5-4, that privately owned (“closely held”) for-profit companies cannot be required to cover certain types of contraceptives for those they employ, as the Affordable Care Act (ACA) had mandated. “Closely held” in this case refers to family-held businesses that refuse coverage of certain services based on owners' long-established moral beliefs. In the case heard by the Supreme Court, owners of the company Hobby Lobby expressed concern that mandated coverage for some forms of contraception would prevent human embryos from being implanted and be in direct violation of their strongly held moral and religious beliefs.

Within days came yet another Supreme Court decision, also by a narrow margin, supporting Wheaton College in its objection to providing coverage or signing a release form for contraception on the grounds that it was morally wrong. The Supreme Court said Wheaton College didn't have to do either of these things, at least for now. These are disappointing rulings that will likely prevent some women, especially those working low-wage jobs and struggling to make ends meet, from getting affordable birth control and perhaps other preventive services.

A 2011 report by the Institute of Medicine (IOM) offered an evidence-based review of preventive services that are important to women's health and well-being and recommended which of these should be considered in the development of comprehensive guidelines. The IOM defined preventive health services as measures that have a high likelihood of improving well-being and/or decreasing the likelihood or delaying the onset of disease. The 8 additional preventive services recommended for women include a full range of contraceptive education, counseling, methods, and services. The IOM also recommended that contraceptive services be provided free of charge, and the Affordable Care Act mandated that contraception be covered and provided free to the user.

Supporters of the IOM's positions fear that the high court's rulings will lead to other health care challenges on religious grounds, such as withholding blood transfusion, vaccination, or certain forms of life-sustaining treatment at the end of life. Others argue that giving corporations religious freedom rights could affect laws that influence hiring practices, safety, and civil rights in the workplace. The College shares these concerns.

In a College press release on June 30, I pointed out that, thanks to the ACA, 71 million Americans received expanded evidence-based preventive services without cost sharing in 2011 and 2012. Preventive services now covered include contraception, flu shots, cancer screenings, wellness visits, and treatment for tobacco cessation. As a result of the women's preventive health benefit in the ACA, many have also saved millions of dollars in out-of-pocket costs for contraception and many other high-quality care options.

Allowing employers to carve out exemptions to the ACA's requirements that health insurance plans cover evidence-based preventive services without cost sharing, including but not limited to contraception, will create substantial barriers to patients effectively receiving appropriate medical care. It may also disproportionately affect many underserved women who would otherwise not be able to afford contraceptive and other preventive services if they were required to pay for them out of pocket.

It's a question of fairness in the workplace, freedom of choice, and fair access to health care services. For nearly 25 years, the College has consistently and repeatedly advocated for universal access to health insurance and reasonable health care services, including preventive services, without regard to socioeconomic status, place or type of employment, or health status. Our position is known and widely published, calling for a combination of public and private health insurance coverage for all persons to minimize financial barriers and assure access to appropriate health care services, with coverage based on a rigorous review of evidence of clinical effectiveness.

In 2000, we recommended a plan to achieve universal coverage through a basic package required of all qualified health plans. I am confident that these policy recommendations represent a consensus view of our members, now 141,000 strong. My claim is bolstered by a survey we did in 2009 of a representative sample of members; more than 79% agreed that insurance companies should be required to cover evidence-based practices that have been shown to prevent disease and provide benefit, with no out-of-pocket cost to the patient.

Clearly there are legal issues in the Supreme Court's decisions that are beyond the scope of this writing. But there are ethical issues as well that need attention. Employment relationships, much like healing relationships, are built on trust. Employees are expected to work diligently and honestly for the benefit of the corporation, while employers must provide a safe and protective work environment that also offers fair opportunity for advancement and success. On each side, as in any well-balanced and successful relationship, respect and a certain degree of forbearance are required to allow for differences in culture and personal beliefs, always maintaining balance so that neither side is unduly burdened or unfairly disadvantaged.

Employers have special obligations to protect this relationship due to the unique vulnerability of their employees. A power differential exists in working relationships that allow corporations and those who run them to have sway over employees, many of whom may feel powerless due to job dependency or socioeconomic inequality. Within this context of mutual obligation, religious freedom rights exist, but these rights are not limitless. To be legitimate, rights or freedom of belief requires mutual consideration so as not to unduly burden or harm those most vulnerable. Otherwise, the relationship becomes oppressive and loses its moral legitimacy. Fewer options exist for employees, who are characteristically dependent on those who pay them each week and provide benefits. Fairness dictates that everyone's rights be respected and that the most vulnerable be protected.

The College reaffirms its support of the ACA in requiring insurance plans and employers to cover evidence-based preventive services without cost sharing so that all who need and want preventive services can have access to them without undue burden. Our nation's efforts to ensure universal access to health care, including preventive services that include contraception as identified by the IOM, present an argument for fairness as well as value. All Americans deserve access to health insurance that covers evidence-based services of all kinds, without regard to their health status, where they work, their socioeconomic status, or what they believe.