This post concludes a symposium on the law and political economy of insurance. Read the rest of the posts here.
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The past decade has witnessed a steady drumbeat of religious challenges to the Affordable Care Act. Employers have argued that they should not be required to provide access to, among other things, contraceptives, sterilization, and gender-affirming care because doing so would violate their religious freedom. More recently, a group of plaintiffs have challenged a provision of the ACA that requires employers and insurers to cover preventive services, including preexposure prophylaxis (PrEP), a type of medication that protects the person taking it from contracting HIV. And Blue Cross Blue Shield, a secular insurer has argued that it is entitled to deny coverage of gender-affirming care because its clients are religious employers.
On the surface, these religious challenges to the ACA appear narrowly focused on exempting specific employers from covering particular types of care. But, as we argue in a forthcoming article, closer examination reveals that religious liberty claims unsettle the ideal of social solidarity at the core of the Affordable Care Act and aggrandize employer power over workers’ off-the-clock conduct. These challenges should thus be understood as a major new vector in the campaign against social insurance in the United States.
The ACA as American-Style Social Insurance
The ACA is imperfect — baffling to the average consumer and inadequate to reach all health care needs. But as health and insurance law scholars have recognized, the statute created a distinctively American form of social insurance — “designed to pursue societal purposes that could not or would not be achieved through individual contracting in private insurance markets.”
The American nature of this social insurance comes from its heavy reliance on private insurers and employers. Insurers must issue policies and charge equal rates to all comers, without regard to their health risks. Employers’ “shared responsibility” in this system means offering workers ACA-compliant insurance or paying a tax.
This social insurance system adopts solidarity as its guiding principle — seeking to distribute health care according to medical need and to spread costs broadly across a diverse community. Under the ACA, most of us bear obligations to strangers whose needs and circumstances may differ from our own, to what Seyla Benhabib calls “the generalized other.” This fragile and privatized system recognizes our mutual interdependence as social citizens, not only as family, friends, or coworkers.
The ACA’s ban on health status discrimination and its expansion of Medicaid—which determine who has access to insurance—were widely understood to reflect this commitment. But benefit design—which determines what insurance covers—also defines the “social” in social insurance. Of particular relevance, the ACA’s preventive services mandate requires no-co-pay coverage of evidence-based screenings, counseling, and medications, including contraceptives and PrEP. In addition, Section 1557 mandates nondiscriminatory benefit design, including coverage of gender-affirming care.
In seeking exemptions from these benefit mandates under the Religious Freedom Restoration Act (RFRA), employers refuse to provide collective support to such needs, on that basis that people should bear the “consequences” of their immoral behavior. Their arguments portray employers as defending traditional and hierarchical collectives. And in granting exemptions, courts return us to the company towns of a century ago, where control over benefits solidified power over workers.
Traditional Communitarianism Against Egalitarian Solidarity
Initial challenges to the ACA advocated for an individualistic “you’re on your own” approach to health care financing. But the religious challengers do not reject collective obligations. In fact, many proclaim a religious commitment to provide health insurance for their employees. They assert a right to “take care of your own as you see fit” within traditional, role-based hierarchies.
Religious employers resist the “social” obligations of the ACA in favor of communities with shared values. Their claims characterize the workplace “as an extension of the domestic life of the family.” In exempting a university from the contraceptive mandate, one court insisted that the plaintiff “employs individuals who share its religious views regarding emergency contraception.” In objecting to coverage of PrEP, the for-profit firms in Braidwood Management v. Becerra cast themselves as shielding employees from the “costs of lifestyle choices” of others who might seek prevention or treatment of HIV or other STIs.
Although employers target what must be covered by plans, they seek to shape who is within the collective. They assert a right to give aid only to people who are familiar to them and can be counted on to conform their behavior to the employer’s norms. As feminist political theorist Joan Tronto cautions, “when we care, we do not think of society; we think of our intimates and their concrete and particular needs…. when care is embedded in [a society fragmented by competition], it does not necessarily lead in a progressive direction.”
Because reproductive and sexual health care are only needed by some, requiring other insureds to assume their costs is described as unfair. “Subsidy” becomes a pejorative, forced upon coworkers and business owners by an individual who does not belong. For those most likely to need the objected-to care — individuals already marginalized by gender, sexual orientation, and religion — benefits become contingent on an employer’s religion, rather than an entitlement of social citizenship.
Bolstering Employer Power
Religious exemptions for businesses exacerbate the problem of employer control over the private lives of workers, well beyond the time and place of work. In the workplace, the few command the many, not as their delegates as democratically chosen representatives do, but as their bosses — in a way that is “incompatible with relations of equality between them and us.”
Religious exemptions work to deter workers from exercising autonomy over their own reproductive and sexual lives. In the contraceptive challenges, it was plausible to maintain that objectors had no intention of interfering with employees’ use of contraceptives. It was their own behavior — paying for the service through insurance — that concerned them. However, in later cases, such as Braidwood, it has become clear that employers’ objection to benefit mandates is really (and perhaps always has been) about how other people behave. Plaintiffs do not see PrEP itself as morally objectionable. Instead, they object to the sexual activity and “homosexual behavior” that they believe STI prevention “encourages and facilitates.”
Like the company towns of a century ago, religious exemptions ensure control through benefits. They once again subject workers to unaccountable decisionmakers, “stemming the growth of the social safety net while allowing corporate paternalism to thrive.”
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As a collective enterprise, insurance sends a message about how people “should think about what ties them together and to whom they have ties.” However imperfect and incomplete, the ACA expresses a message of solidarity across society—that we are all connected and dependent. The campaign for employer religious exemptions threatens this move toward egalitarian solidarity. Through exemptions from the preventive services mandate and the nondiscrimination rule, questions of insurance coverage—which needs we should mutually aid—are decided by employers in the first instance and by the courts in the second.
Religious-liberty-based arguments against benefit mandates have been treated as marginal to the project of social insurance in America. But as LPE scholars turn their lens to insurance law, we must keep in mind that decisions about what is covered and the process by which coverage determinations are made also define the “social” in social insurance. Faced with resistance through employer “rights,” we may need to re-evaluate American-style privatized social insurance and re-structure access to comprehensive and equitable benefits.
