After what seems like a decade of arguments, debates and legal challenges, the controversial health care law known as Obamacare is here.
On Jan. 1, millions of Americans were scheduled to have their health insurance policies regulated by the Affordable Care Act, the 2010 law signed by President Barack Obama that seeks to increase access for consumers seeking to buy health care coverage.
Obama and his political allies say the new health care law, when all of its numerous provisions are implemented, will provide medical care to millions of people who were previously uninsured and had little access to affordable health care.
“In some ways, the law is already increasing access to health care,” Stephen F. Schneck, director of the Institute for Policy Research and Catholic Studies at The Catholic University of America, told Our Sunday Visitor.
“Many young people are being covered in their parents’ health plans into their 20s. The expansion of Medicaid, in the states where it has been allowed, is allowing the working poor to enroll in health insurance. The law is already starting to work, but it will be a gradual process.”
Not everyone, however, is as optimistic about the changes the Affordable Care Act will bring.
The U.S. Conference of Catholic Bishops, which has long championed universal access to health care and declined to weigh in on some of the technical aspects of the Affordable Care Act, has raised concerns that the law compels people, in their health insurance premiums, to pay what is essentially a surcharge for abortion coverage.
The Affordable Care Act also authorized U.S. Department of Health and Human Services Secretary Kathleen Sebelius to create a mandate that employer-provided health insurance plans must cover — without copays or deductibles — contraceptives, abortifacients and sterilization. The HHS mandate is supposed to provide exemptions for religiously affiliated employers, but it remains to be seen whether Catholic hospitals, universities and nonprofits will truly be shielded from liability.
Meanwhile, private employers with religious convictions — along with several religious nonprofits — continue to fight the HHS mandate in court. The Supreme Court likely will hear arguments in the spring on whether the federal government can compel owners of private, for-profit enterprises to provide birth control services in their employee health plans.
Also, some medical professionals are worried that the law’s regulatory changes could make it difficult for them to stay in practice, while others believe the law violates the Catholic social principle of subsidiarity by empowering the central government at the expense of the ability of physicians and patients to make their own decisions.
Dr. John Brehany, executive director of the Catholic Medical Association, told OSV that nearly 99 percent of more than 265 physicians who responded to a CMA survey earlier this year said they were concerned that the law will have a negative impact on the doctor-patient relationship. Almost 60 physicians said they planned to retire earlier because of the new law.
Brehany said he believes the Affordable Care Act violates subsidiarity by investing so much power in an administration known for being a fierce advocate of legalized abortion and secularization.
“The Obama administration has given every indication it is hostile to religious freedom and hostile to any religious claims of judgment in medicine that would refuse or decline to provide reproductive services like contraception, sterilization and abortifacients,” Brehany said. “They are actively hostile to religious freedom and to conscience rights, and that is integral to being a health care professional.”
Kathy Saile, director of the USCCB’s Office of Domestic Social Development, noted that the bishops have expressed their moral concerns over the HHS mandate and the abortion provisions in the law. She told OSV that many people may not grasp how significant a reform the Affordable Care Act is.
“That is all the more reason for people to be serious about this, to work on the things that are wrong, and to be serious in implementing it in a way that is helpful and makes sure people get the health care that they need,” Saile said.
Fees and subsidies
While many of the law’s provisions on health insurance coverage take effect Jan. 1, people have until March 31 to enroll in health insurance. If they fail to do this, they will pay a “fee” — essentially a fine — when they fill out their 2014 federal income tax forms.
The fee — which the law calls the “individual responsibility payment” — can be $95 for an adult or 1 percent of income, whichever is higher. The fee increases every year.
For people who do not receive health insurance through an employer or a relative, they can shop for plans through health care exchanges in their states. Thirty-six states run their exchanges through the federal government’s online portal, HealthCare.gov, which rolled out to disastrous results on Oct. 1, 2013. After it launched, the website crashed so often that, according to an internal White House document released by the House Oversight Committee, only six people were able to sign up for health insurance on the first day. The website, while not perfect, was operating better in December after the Obama administration assigned teams of technical experts to work through November to fix the glitches.
For low-income people, the federal government is supposed to provide subsidies to help them afford health insurance. The subsidies are based on a complicated formula based on income and the cost of insurance premiums. The government says anyone essentially earning less than $45,900 a year can qualify for subsidies, though various analyses indicates that younger low-income Americans in some cities may not qualify for subsidies because the government overestimated the costs of health insurance.
The idea of the Affordable Care Act — borrowed from a similar law Massachusetts passed in 2006 — is that everyone must enroll in health insurance for the system to be financially viable. Health insurance companies are required to provide coverage for people with pre-existing medical conditions and other health issues. The system depends on enough young, healthy people enrolling to offset the costs of insuring people who are more likely to have medical needs.
Besides the “individual mandate” that everyone must buy insurance — a provision the Supreme Court ruled in a 5-to-4 vote in 2012 was constitutional — the law regulates the type of coverage that health insurance plans must include. For example, the plans must cover what are called “essential health benefits,” such as prescription drugs, rehabilitation services, maternity and newborn care, and pediatric services.
The health plans must also cover what are known as preventive care services, such as physicals, as well as autism screening and behavioral assessments for children. The law’s provision for women’s preventive services mandates coverage for all birth control methods approved by the U.S. Food and Drug Administration, with an exemption for some “religious employers.”
Adults under age 26 — even if they are married and financially independent — are eligible to get insured under a parent’s plan.
In addition to paying the fine, anyone who does not enroll in health insurance before March 31 will be responsible for paying 100 percent of the cost of their medical care. The law’s health care provisions do not apply to recently arrived and undocumented immigrants, an exclusion that the nation’s bishops have criticized.
President Obama and his fellow Democrats — no Republican lawmaker voted for the law when it was passed — said their health care reform was aimed at providing access to quality health care to the more than 46 million Americans who were previously uninsured.
The nonpartisan Congressional Budget Office previously estimated that 14 million more Americans will be enrolled in health insurance in the first year, and 6 million more in the second year. Many of those increases are supposed to come primarily through the expansion of Medicaid that the Affordable Care Act also provides, although the Supreme Court assigned the decision to expand Medicaid to the states.
The nation’s Catholic bishops, including several popes, have advocated for universal access to health care. Blessed Pope John XXIII, in his 1963 encyclical Pacem in Terris (“Peace on Earth”), listed health care as a basic human right, and said health care “as far as possible should be cheap or even free of charge.” Blessed John Paul II also addressed the need for health care in his 1981 encyclical Laborem Exercens (“On Human Work”) while Pope Benedict XVI, in November 2010, wrote that health care access was one of the “inalienable rights” of man.
Pope Francis, in his recent apostolic exhortation, Evangelii Gaudium (“The Joy of the Gospel”), wrote that it is “vital” that government leaders work to ensure all citizens have “dignified work, education and health care.”
The USCCB has also consistently held that access to decent health care is a basic safeguard of human life that affirms human dignity from conception until natural death. Since 1919 — when the nation’s archbishops began meeting as a precursor to the USCCB — the Catholic Church in the United States has staked a position in the position in favor of accessible health care, especially for the poor and needy.
“And we’ve maintained that through the years,” said Archbishop William E. Lori of Baltimore, the chairman of the USCCB Ad-Hoc Committee for Religious Liberty. Archbishop Lori told OSV that the bishops have called for universal access to health care as an outgrowth of the Church’s social teaching, and not as a partisan stance.
“How you go about providing that is another matter, and that is open to legitimately different opinions,” Archbishop Lori said.
“Now, just because health care is a right, doesn’t necessarily mean that a single-payer system is the only option,” Saile added. “Although that would help guarantee that right, and it is certainly a viable option, there are other ways to do it.”
However, Father Michael P. Orsi, chaplain and research fellow in Law and Religion at Ave Maria School of Law, told OSV that the bishops have been wrong to equate health care with human rights. Father Orsi said people and society are obligated to provide medical care — which he defined as caring for the sick and injured — rather than a whole system of health care that includes preventive screenings. Father Orsi framed the concept of health care as a cradle-to-grave set of entitlements, such as someone having the right to a stress test or a colonoscopy.
USCCB’s Saile and Schneck, from Catholic University, disputed Father Orsi’s position. Saile noted that she recently broke her wrist while hiking. After surgery, she underwent occupational therapy to regain full use of her wrist and hand.
“What would medical care be? Let’s get the bones fused and that’s it?” Saile said.
“Relying on emergency rooms is not sufficient for health care in the way that Catholic social teaching understands it,” Schneck added. “It has to be about promotion. We’re not just about taking care of people who fall out of a tree and break their arm. Health care has to be integrated into the fabric of daily family life.”
Religious liberty assaults
In its criteria for health care reform, the USCCB listed universal access to comprehensive benefits, respect for life and preventing federal funding of abortion, as well as promoting the common good and respecting religious and ethical values as important benchmarks. But on at least two of those criteria — the HHS mandate and abortion coverage on the exchanges — the Affordable Care Act seems to comes up short.
“We have serious moral concerns about what was contained in the final law,” Saile said.
The bishops have been fighting the HHS contraceptive mandate for the better part of two years. They have pressed their case in the courts, and have called upon lawmakers in Congress to pass legislation, including the Health Care Conscience Rights Act, to shield religious employers from the mandate.
The Obama administration created what it says is an accommodation for religious nonprofits by having a third-party administrator or insurer make separate payments for birth control services. The Catholic University of America’s Schneck said he believed the law has sufficient, but complicated, safeguards against forcing Catholic institutions from compromising their principles.
“I don’t think at the end of the day that there is even a material formal or informal cooperation with evil,” Schneck said. “But I still have problems with how complicated the safeguards are.”
However, Archbishop Lori and the USCCB said the administration’s accommodation is “wholly inadequate.”
“What the administration really does is that it tells us that our Church institutions that serve the poor and the vulnerable are a little less than religious and not deserving of the full protection of their religious liberties,” Archbishop Lori said. Religious nonprofits — such as Catholic hospitals and universities — were exempt from the mandate until Jan. 1, when the government’s “safe harbor” ends. The administration says the nonprofits’ religious concerns over contraception will then be accommodated. Most of the Church’s entities have self-funded plans with anniversaries that begin later in the year, so Jan. 1 will not be a “hard-and-fast deadline” for many of them, Archbishop Lori said.
However, private businesses are already subject to the mandate. Many private employers have sued over the issue, including Hobby Lobby, a Colorado-based crafts-store chain owned by the Green family. In late November, the Supreme Court agreed to take up Sebelius v. Hobby Lobby Stores, Inc. , a case that the Becket Fund for Religious Liberty says will address the constitutional rights of business owners to operate their companies without violating their religious convictions.
“The Supreme Court seems to be the most likely venue to fix this [mandate], not so much Congress,” Saile said.
Archbishop Lori said he hopes the Supreme Court will see that corporations function as “moral persons” because they often espouse various social causes.
“How many times will a corporation make a corporate commitment to some good cause like cleaning the Chesapeake Bay, or serving the homeless and the poor in an inner city, or perhaps it could be health issues,” Archbishop Lori said.
“For us to say a corporation is amoral, that’s a pretty worrisome thing,” Archbishop Lori added. “In addition, corporations make corporate decisions to conduct their business in an ethical way. It would be a terrible thing to conclude that our corporate life is amoral.”
On the issue of abortion, the USCCB’s legal analysis from March 2012 says the Affordable Care Act requires many health insurers to charge all enrollees for elective abortions. Taxpayers will also be forced to subsidize health plans on the exchanges that cover elective abortions, contrary to the Hyde Amendment that prohibits taxpayer funds from being used for abortion. Those plans will have a surcharge on all enrollees, with those funds being used to pay for abortions for anyone in the plan.
The federal government prohibits insurers from allowing enrollees from opting out of the abortion coverage on conscience grounds, or even telling them how much of their money will go toward other people’s abortions, according to the USCCB. U.S. Rep. Christopher Smith, Republican of New Jersey, has filed legislation to require exchanges to state up front whether a health insurance plan covers abortion.
Saile said the USCCB is currently analyzing the abortion provisions, particularly as they play out on plans in the states’ health care exchanges. Saile said she sees a silver lining in that more people are realizing that their health plans have long provided abortion coverage without their knowledge.
“It really has raised people’s awareness,” Saile said.
However, Father Orsi noted that several pro-life voices raised concerns about the Affordable Care Act’s provisions for abortion coverage well before its passage in 2010.
“Obama sees abortion as a fundamental human right,” Father Orsi said. “The bishops allowed themselves to be fooled into this.”
To combat abortion coverage, 23 states have passed laws to prohibit health insurance plans from covering abortions on their exchanges. Eight of those states ban abortion coverage in both public and private plans, and Michigan is currently considering a similar ban. Some of those state bans allow insurance companies to offer separate supplemental coverage for abortion.
Schneck said he hopes the U.S. Department of Justice, particularly the attorney general, reviews the state health care exchanges to ensure laws prohibiting federal taxpayer funding of abortions are enforced.
Individual states also have the option to expand Medicaid, the federal health care plan for low-income Americans. The Affordable Care Act originally would have made those Medicaid expansions mandatory, but the Supreme Court made them optional. By early December, about 16 states had moved to expand their Medicaid programs, while other states were reviewing the plans. About 16 states are opposed to the expansion, according to the Henry J. Kaiser Family Foundation.
Saile said the states’ Catholic conferences have been pushing for the Medicaid expansion, and noted that the Ohio Catholic Conference helped push it through when it did not appear that lawmakers would approve the expansion there. Saile also said the bishops hope that recent legal and undocumented immigrants will eventually be covered under the law.
“Catholic social teaching doesn’t differentiate human rights based upon your legal status,” Saile said.
The Affordable Care Act’s impact on the operation of the nation’s health care system itself remains to be seen, though there are already some troubling consequences that the law’s drafters may not have anticipated.
Physicians groups told the Obama administration in late November that many of the new insurance plans offer limited networks of providers and low reimbursement rates for doctors. As a result, many people who have already signed up for coverage or plan to do so before the March 31 deadline may soon learn that their longtime physicians are not in their plans’ networks.
Also, several large employers — such as Delta Airlines and IBM — have announced cutbacks in their heath insurance plans while other companies, such as Stryker Corp., a Michigan-based medical device manufacturer, laid off more than 1,000 employees because of the law’s 2.3 percent excise tax on medical devices.
Dr. Brehany, from the Catholic Medical Association, said there is “tremendous upheaval” as patients lose their previous insurance benefits and longtime family physicians.
“The physician and health care institution pool of choices that patients have are being sharply reduced, so the networks are smaller, and patients are losing the things they had,” said Dr. Brehany, who also noted that the law empowers the federal government with total power to define quality and reporting standards in health care.
The Affordable Care Act makes physicians dependent on government programs for their reimbursement, and exponentially increases red tape and federal demands on physicians, said Dr. Brehany, adding that some Medicare reimbursement rates will be worse for physicians.
“Doctors are having choices foisted upon them, and it is not clear that they are willing and able even to accept being in the networks they are in,” Dr. Brehany said. “There are doctors being enrolled into certain networks, often without their knowledge.”
Father Orsi said a law as complex as the Affordable Care Act should not have been “forced down the people’s throats.”
He added that the Obama administration pushed the law without transparency or any Republican support.
“People lied to get it through,” Father Orsi said. “It didn’t represent the minority interest at all.”
“I don’t think most Americans are even aware of the benefits that are in the Affordable Care Act,” Schneck said. “The salesmanship on this hasn’t been very good at all, and some of the blame has to go to Obama for not doing a better job in selling this.”
Rather than outright repeal, other Catholic commentators said a better strategy is to amend the Affordable Care Act’s problematic provisions.
“The bishops don’t support full-scale repeal,” Saile said. “It’s always been a position of, ‘Let’s fix it.’”
Brian Fraga writes from Massachusetts.
Does the Affordable Care Act’s contraceptive mandate violate religious freedom?
The Supreme Court may finally answer that question.
On Nov. 26, the high court agreed to take up the federal government’s appeal in Sebelius v. Hobby Lobby Stores, Inc. The Colorado-based crafts-store chain is challenging the contraceptive mandate.
The U.S. 10th Circuit Court of Appeals ruled earlier this year that the HHS mandate placed a “substantial burden” on the religious freedoms of the Green family, which owns Hobby Lobby.
“This is a major step for the Greens and their family businesses in an important fight for Americans’ religious liberty,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty and lead lawyer for Hobby Lobby.
There are currently 89 lawsuits challenging the HHS mandate. Forty-six lawsuits brought by for-profit businesses have been filed, with 33 plaintiffs securing injunctive relief.
The main issue in the Hobby Lobby case comes down to whether private businesses can cite religious objections to the contraceptive mandate. Oral arguments are expected to be held in March, with a ruling by late June.
In 2012, the Supreme Court narrowly upheld the Affordable Care Act on a 5-to-4 vote. With Chief Justice John Roberts as the clinching vote, the majority affirmed the law’s “individual mandate” that all Americans are required to buy health insurance.
Father Michael P. Orsi, chaplain and research fellow in law and religion at Ave Maria School of Law, told OSV that Roberts and the majority overstepped their bounds in ruling the fine that Americans must pay if they fail to enroll in health care to be a tax.
A key issue for the Supreme Court in the Hobby Lobby case will be how they interpret the 1993 federal law known as the Religious Freedom Restoration Act, which prevents the government from passing laws that put an undue burden on a person’s free exercise of religion, applies to businesses.
In a unanimous “special message” on the HHS mandate issued in October, the U.S. bishops reaffirmed their opposition to a mandate that “compels our faithful people in business to act against our teachings, failing to provide them any exemption at all.”
Three federal appeals courts have struck down the mandate, while two other appeals courts upheld it. Companies such as Hobby Lobby that refuse to comply with the mandate could face crippling fines.
“We are hopeful that the Supreme Court will clarify once and for all that religious freedom in our country should be protected for family business owners like the Greens,” Duncan said.