Businesses face major benefits questions amid Roe uncertainty

Corporate America is facing a flurry of questions about how it provides health benefits in the wake of a leaked U.S. Supreme Court draft that indicates the federal right to abortion could be overturned.

Why it matters: Businesses hoping to use reproductive health benefits as part of efforts to recruit and retain employees would have to be careful not to run afoul of laws should states be allowed to ban abortions.

  • The balancing act over the next several months could get messy, experts warn.

What they’re saying: “It’s a serious issue for employers,” said Candice Sherman, the CEO of the Northeast Business Group on Health. The group represents roughly 80 large companies such as American Express, Colgate, Moderna and Pfizer.

  • Limits on abortion coverage have the potential to impact the physical and mental health of the workforce and could come as many employers are addressing equity and inclusion for women, people of color and LGBTQ employees, Sherman said.
  • That is often communicated by companies through benefit design.

State of play: Some large companies like Amazon, Apple and Lyft have already announced plans to provide workarounds in those states with abortion restrictions.

  • But many others are still on the sidelines as they tease out employees’ priorities on abortion-related benefits, as well as the potential costs and legal risks.
  • Eleven states restrict insurance coverage of abortion in all private insurance plans written in the state, including those offered through Affordable Care Act markets, according to the Guttmacher Institute. Six other states require abortion coverage in private health insurance plans.

Zoom in: One of the most immediate questions is what kind of employer-sponsored abortion coverage — as well as enhanced benefits like travel stipends — might create legal liabilities for companies in states that ban abortion.

  • “There’s a question as to whether providing transportation benefits could be construed, or at least alleged by the states in enforcement, as aiding and abetting,” said Garrett Hohimer, director of policy and advocacy for the Business Group on Health. That group counts corporations like The Walt Disney Co., Walmart and General Motors among its members.
  • Companies like Citigroup that pay for out-of-state abortions have already been threatened with the loss of business.

Yes, but: In the case of a challenge, companies would have a strong argument that federal protections for providing abortion care benefits preempt state laws, Emily Dickens, the head of government affairs for the Society for Human Resource Management, told Axios.

  • Dickens pointed specifically to the Pregnancy Discrimination Act which specifically says an employer is permitted to provide health insurance coverage for abortion, as well as protections under ERISA law.

But, but, but: It’s not a sure thing. For instance: “ERISA is not a get out of jail free card,” Hohimer warned, saying there is some question about how the law would be interpreted.

  • While experts largely believe the Affordable Care Act would provide protections for birth control coverage, it’s unclear how fertility benefits such as egg freezing, surrogacy or in vitro fertilization might be affected, Sherman said.

What to watch: Many large companies already offer health benefits allowing workers to travel to Centers of Excellence for procedures like joint replacements or cancer care.

  • Those kinds of benefits will likely gain more attention because of the attention surrounding reproductive health, Hohimer said.
  • Sherman said this may also raise questions about whether there’s flexibility in the tax code to expand the scope of Flexible Spending Accounts or Health Savings Accounts to cover travel for any health care issues.

The bottom line: “Assuming this discussion comes down the way we think it may, organizations are going to have to work very hard,” Sherman said.

Providers ponder a post-Roe future

https://mailchi.mp/df8b77a765df/the-weekly-gist-may-6-2022?e=d1e747d2d8

If the leaked Supreme Court draft opinion overturning Roe v. Wade—which in 1973 established an individual’s constitutional right to an abortion—is finalized, as many as 26 states are either certain or likely to ban abortion. The resulting patchwork of abortion laws across the country could create confusion for providers and hospitals on multiple fronts, including cases related to the Federal Emergency Medical Treatment and Labor Act (EMTALA), as well as for health systems that operate in multiple states. Medical training on the procedure could become much more limited, as about half of the nation’s obstetrics and gynecology residencies are in states likely to ban abortion.

Recognizing the precarious position that abortion bans will put some providers in, the American Medical Association released a statement on Thursday saying that it is “deeply concerned” with the draft opinion, and that it “would lead to government interference in the patient-physician relationship, dangerous intrusion into the practice of medicine, and potentially criminalizing care.”  

The Gist: Abortion is just one of a raft of issues where the provision of health services increasingly intersects with charged politics in this country. If Roe is overturned, medication abortion—the use of abortion pills—which already accounts for more than half of all abortions, will increase, although multiple states are already seeking to limit access. 

Restricting access to safe abortions will also further exacerbate health disparities, driving up the already distressingly high US maternal mortality rate, especially among Black women. And overturning Roe would have implications far beyond access to abortion, especially for patients experiencing miscarriages, ectopic pregnancies, or other life-threatening medical conditions related to pregnancy.

The next attack on the Affordable Care Act may cost you free preventive health care

The next attack on the Affordable Care Act may cost you free preventive  health care

Many Americans breathed a sigh of relief when the Supreme Court left the Affordable Care Act (ACA) in place following its third major legal challenge in June 2021. This decision left widely supported policies in place, like ensuring coverage regardless of preexisting conditions, coverage for dependents up to age 26 on their parents’ plan and removal of annual and lifetime benefit limits.

But the hits keep coming. One of the most popular benefits offered by the ACA, free preventive care through many employer-based and marketplace insurance plans, is under attack by another legal domino, Kelley v. Becerra. As University of Michigan law professor Nicholas Bagley sees it, “[t]his time, the law’s opponents stand a good chance of succeeding.”

We are public health and economics researchers at Boston University who have been studying how preventive care is covered by the ACA and what this means for patients. With this policy now in jeopardy, health care in the U.S. stands to take a big step backward.

What did the ACA do for preventive health?

The Affordable Care Act tried to achieve the twin ideals of making health care more accessible while reducing health care spending. It created marketplaces for individuals to purchase health insurance and expanded Medicaid to increase coverage for more low-income people.

One way it has tried to reach both goals is to prioritize preventive services that maximize patient health and minimize cost, like cancer screenings, vaccinations and access to contraception. Eliminating financial barriers to health screenings increases the likelihood that common but costly chronic conditions, such as heart disease, will be diagnosed early on.

Section 2713 of the ACA requires insurers to offer full coverage of preventive services that are endorsed by three federal groups: the U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices and the Health Resources and Services Administration. This means that eligible preventive services ordered by your doctor won’t cost you anything out of pocket. For example, the CARES Act used this provision to ensure COVID-19 vaccines would be free for many Americans.

Removing the financial barrier has drastically reduced the average cost of a range of preventive services. Our study found that the costs of well-child visits and mammograms were reduced by 56% and 74%, respectively, from 2006 to 2018. We also found that the ACA reduced the share of children’s preventive checkups that included out-of-pocket costs from over 50% in 2010 to under 15% in 2018.

Residual costs for preventive services remain

Despite these reductions in costs, there are limitations to this benefit. For example, it doesn’t cover follow-up tests or treatments. This means that if a routine mammogram or colonoscopy reveals something that requires further care, patients may have to pay for the initial screening test, too. And some patients still receive unexpected bills for preventive care that should have been covered. This can happen, for example, when providers submit incorrect billing codes to insurers, which have specific and often idiosyncratic preventive care guidelines.

We also studied the residual out-of-pocket costs that privately insured Americans had after using eligible preventive services in 2018. We found that these patients paid between $75 million to $219 million per year combined for services that should have been free for them. Unexpected preventive care bills were most likely to hit patients living in rural areas or the South, as well as those seeking women’s services such as contraception and other reproductive health care. Among patients attempting to get a free wellness visit from their doctor, nearly 1 in 5 were later asked to pay for it.

Nevertheless, the preventive health provision of the ACA has resulted in significant reductions in patient costs for many essential and popular services. And removing financial barriers is a key way to encourage patients to use preventive services intended to protect their health.

The threat of Kelley v. Becerra

The plaintiffs who brought the latest legal challenge to the ACA, Kelley v. Becerra, object to covering contraception and preexposure prophylaxis (PrEP) for HIV on religious and moral grounds. The case is currently awaiting decision in a district court in Texas, but seems to be headed to the Supreme Court.

The case rests on two legal issues: 1) violation of the nondelegation doctrine, and 2) the appointments clause of the Constitution. The nondelegation doctrine is a rarely used legal argument that requires Congress to specify how their powers should be used. It essentially argues that Congress was too vague by not specifying which preventive services would be included in Section 2713 up front. The appointments clause specifies that the people using government powers must be “officers of the United States.” In this case, it is unclear whether those in the federal groups that determine eligible preventive care services qualify.

Texas District Judge Reed O’Connor has indicated so far that he takes a kind view toward the plaintiff’s case. He could rule that this provision of the ACA is unconstitutional and put the case on a path to the Supreme Court.

Patients stand to lose more than just money

If Section 2713 were repealed, insurers would have the freedom to reimpose patient cost-sharing for preventive care. In the short run, this could increase the financial strain that patients face when seeking preventive care and discourage them from doing so. In the long run, this could result in increased rates of preventable and expensive-to-treat chronic conditions. And because Section 2713 is what allows free COVID-19 vaccines for those with private health insurance, some patients may have to pay for their vaccines and future boosters if the provision is axed.

The ACA has been instrumental in expanding access to preventive care for millions of Americans. While the ACA’s preventive health coverage provision isn’t perfect, a lot of progress that has been made toward lower-cost, higher-value care may be erased if Section 2713 is repealed.

Lower-income patients will stand to lose the most. And it could make ending the COVID-19 pandemic that much harder.

Supreme Court Will Hear First Major Abortion Case Since Two Trump Appointees Joined

https://www.wsj.com/articles/supreme-court-will-hear-first-major-abortion-case-since-two-trump-appointees-joined-11583192925?mod=hp_lista_pos2

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Case will test new conservative makeup’s approach to precedent.

The Supreme Court hears its first major abortion case Wednesday since two Trump nominees joined the bench, potentially signalling whether—and how much——reproductive rights may change under a bolstered conservative majority.

“There’s a lot on the line in this case, and more than most people realize,” said Mary Ziegler, a law professor at Florida State University and author of the forthcoming book “Abortion and the Law in America.”

Most prominently, the case involves the Supreme Court’s approach to precedent, since it largely is a replay of an issue the court decided in 2016, when by a 5-3 vote it struck down a Texas law requiring that abortion providers obtain admitting privileges at a nearby hospital.

The case also tests the strategy for antiabortion forces, who have been divided over the best way to roll back court precedents recognizing women’s constitutional right to end pregnancy. While some advocates seek to reverse outright Roe v. Wade, the 1973 decision recognizing abortion rights, others believe a more prudent approach is to carve away at the precedent through increasingly restrictive regulations that would spare the Supreme Court the controversy of directly overruling a landmark case.

The law in question, known as the Louisiana Unsafe Abortion Protection Act, isn’t based on a state policy to protect potential life, an interest that the Supreme Court has recognized as valid justification for some abortion restrictions.

Instead, it is based on the argument that abortion itself can be harmful to women, and that restricting access to the procedure therefore is beneficial to women. For that reason, the state’s brief contends that abortion providers shouldn’t be permitted to challenge the law on behalf of their patients, arguing that “a serious conflict of interest” exists between them and Louisiana’s women.

In striking down the Texas law in 2016, the court found the admitting-privilege requirement provided no health benefits to women while forcing many of the state’s abortion clinics to close.

The opinion, by Justice Stephen Breyer, cited evidence that admitting privileges do little to ensure continuity of care, as the state maintained, because when abortion has complications, they generally arise not at the clinic but days after the procedure, when the patient would visit her regular physician or local hospital. The court also observed that hospital admitting privileges aren’t a general credential but are granted for other purposes, such a doctor’s ability to bring in patients for treatment.

Statistically, however, only a tiny number of women require hospitalization after abortion, the court said. “In a word, doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit,” Justice Breyer wrote.

But that decision, Whole Woman’s Health v. Hellerstedt, hinged on since-retired Justice Anthony Kennedy, a maverick conservative who joined more liberal justices in the majority. With the late Justice Antonin Scalia’s seat vacant, three conservatives dissented, contending that the majority skirted procedural rules to throw out the Texas law.

President Trump, who appointed Justice Brett Kavanaugh to the vacancy, had as a candidate predicted his Supreme Court picks would vote to overrule Roe v. Wade.

In September 2018, three months after Justice Kennedy’s retirement, the Fifth U.S. Circuit Court of Appeals, in New Orleans, upheld a Louisiana admitting-privileges law that critics argue is identical to the Texas measure struck down two years earlier. The appellate court found the Louisiana Unsafe Abortion Protection Act wouldn’t burden abortion rights in Louisiana to the degree the Texas law did in its state.

An abortion clinic in Shreveport, La., June Medical Services LLC, and three doctors who perform the procedure appealed to the Supreme Court.

That puts the spotlight particularly on Justice Kavanaugh, whose remarks and writings, which have praised the dissent in Roe and supported a Trump administration policy to prevent an underage illegal immigrant from obtaining an abortion, have given hope to abortion opponents.

However, the focus may equally fall on Chief Justice John Roberts, who typically has voted against abortion-rights positions in Supreme Court cases—but he also has stressed an institutional interest in distinguishing the courts from political bodies, where outcomes on legislation can swing wildly based on the latest election results. For that reason, he may be hesitant to overrule even a decision he opposed simply because Justice Kennedy’s retirement presents an opportunity.

In February 2019, he joined the court’s liberal wing to block implementation of the Louisiana law while the appeal proceeded; four other conservatives dissented, although Justice Kavanaugh appended a statement suggesting he was taking a middle ground. He said he wasn’t persuaded that the Louisiana doctors had fully explored opportunities to obtain hospital-admitting privileges.

Should a frontal assault on recent precedent alienate the chief justice or another conservative justice, it probably would end prospects for similar admitting-privilege laws.

But the door could remain open for other abortion restrictions that aren’t covered by existing precedent, particularly if the court signals a readiness to pare back the ability of abortion providers to challenge regulations, or suggests it is more inclined to defer to legislative judgments regarding the safety of abortions rather than evidence, such as scientific research or the views of the medical profession, presented at trial court.

 

Supreme Court to take up Trump appeal in ObamaCare birth control case

https://thehill.com/regulation/court-battles/478838-supreme-court-to-take-up-trump-appeal-in-obamacare-birth-control

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The Supreme Court on Friday agreed to hear the Trump administration’s appeal in a legal fight over religious exemptions for ObamaCare’s requirement that employer-based health plans cover birth control.

The administration is seeking to expand exemptions for religious objectors to the Affordable Care Act’s so-called “contraceptive mandate.”

It will mark the third time the Supreme Court has heard a case regarding the mandate, a controversial provision of ObamaCare that has been fiercely opposed by conservatives and religious groups for years.

The Trump administration is asking the Supreme Court to overturn a nationwide injunction issued by a lower court blocking the rule from taking effect.

The rule would allow most businesses to claim a religious exemption to the mandate and opt out of covering contraception for their employees. 

Rules issued by the Obama administration already provided exemptions for religiously-affiliated organizations. But the Trump rule would also allow exemptions for almost all other businesses, including nonprofits, for-profit companies, higher education institutions and other non-government employers.

Civil rights groups argue the rules would essentially let employers discriminate against employees who use birth control. 

“Allowing employers and universities to use their religious beliefs to block employees’ and students’  birth control coverage isn’t religious liberty — it’s discrimination,” said Brigitte Amiri, deputy director at the ACLU Reproductive Freedom Project.

 

 

 

 

The Presidential Campaign, Policy Issues and the Public

https://news.gallup.com/opinion/polling-matters/269717/presidential-campaign-policy-issues-public.aspx

The Presidential Campaign, Policy Issues and the Public

The U.S. presidential campaign is ultimately a connection between candidates and the people of the country, but the development of the candidates’ policies and positions is largely asymmetric. Candidates develop and announce “plans” and policy positions that reflect their (the candidates’) philosophical underpinnings and (presumably) deep thinking. The people then get to react and make their views known through polling and, ultimately, through voting.

Candidates by definition assume they have unique wisdom and are unusually qualified to determine what the government should do if they are elected (otherwise, they wouldn’t be running). That may be so, but the people of the country also have collective wisdom and on-the-ground qualifications to figure out what government should be doing. That makes it useful to focus on what the people are telling us, rather than focusing exclusively on the candidates’ pronouncements. I’m biased, because I spend most of my time studying the public’s opinions rather than what the candidates are saying. But hopefully most of us would agree that it is worthwhile to get the public’s views of what they want from their government squarely into the mix of our election-year discourse.

So here are four areas where my review of public opinion indicates the American public has clear direction for its elected officials.

1. Fixing Government Itself.

I’ve written about this more than any other topic this year. The data are clear that the American people are in general disgusted (even more than usual) with the way their government is working and perceive that government and elected leaders constitute the most important problem facing the nation today.

The people themselves may be faulted here because they are the ones who give cable news channels high ratings for hyperpartisan programming, keep ideological radio talk shows alive, click on emotionally charged partisan blogs, and vote in primaries for hyperpartisan candidates. But regardless of the people’s own complicity in the problem, there isn’t much doubt that the government’s legitimacy in the eyes of the people is now at a critically negative stage.

“Fixing government” is a big, complex proposition, of course, but we do have some direction from the people. While Americans may agree that debate and differences are part of our political system, there has historically been widespread agreement on the need for elected representatives to do more compromising. Additionally, Americans favor term limitsrestricting the amount of money candidates can spend in campaigns and shifting to a 100% federally funded campaign system. (Pew Research polling shows that most Americans say big donors have inordinate influence based on their contributions, and a January Gallup poll found that only 20% of Americans were satisfied with the nation’s campaign finance laws.) Americans say a third major party is needed to help remedy the inadequate job that the two major parties are doing of representing the people of the country. Available polling shows that Americans favor the Supreme Court’s putting limits on partisan gerrymandering.

Additionally, a majority of Americans favor abolishing the Electoral College by amending the Constitution to dictate that the candidate who gets the most popular votes be declared the winner of the presidential election (even though Americans who identify as Republicans have become less interested in this proposition in recent years because the Republican candidate has lost the popular vote but has won in the Electoral College in two of the past five elections).

 

2. Fix the Backbone of the Nation by Initiating a Massive Government Infrastructure Program.

I have written about this at some length. The public wants its government to initiate massive programs to fix the nation’s infrastructure. Leaders of both parties agree, but nothing gets done. The failure of the Congress and the president to agree on infrastructure legislation is a major indictment of the efficacy of our current system of representative government.

 

3. Pass More Legislation Relating Directly to Jobs.

Jobs are the key to economic wellbeing for most pre-retirement-age Americans. Unemployment is now at or near record lows, to be sure, but there are changes afoot. Most Americans say artificial intelligence will eliminate more jobs than it creates. The sustainability of jobs with reasonably high pay in an era when unionized jobs are declining and contract “gig” jobs are increasing is problematic. Our Gallup data over the years show clear majority approval for a number of ideas focused on jobs: providing tax incentives for companies to teach workers to acquire new skills; initiating new federal programs to increase U.S. manufacturing jobs; creating new tax incentives for small businesses and entrepreneurs who start new businesses; providing $5.5 billion in federal monies for job training programs that would create 1 million jobs for disadvantaged young Americans; and providing tax credits and incentives for companies that hire the long-term unemployed.

My read of the data is that the public generally will support almost any government effort to increase the availability of high-paying, permanent jobs.

 

4. Pass Legislation Dealing With All Aspects of Immigration.

Americans rate immigration as one of the top problems facing the nation today. The majority of Americans favor their elected representatives taking action that deals with all aspects of the situation — the regulation of who gets to come into the country in the first place and the issue of dealing with individuals who are already in the country illegally. As I summarized in a review of the data earlier this year: “Americans overwhelmingly favor protecting the border, although with skepticism about the need for new border walls. Americans also overwhelmingly favor approaches for allowing undocumented immigrants already living in the U.S. to stay here.”

Recent surveys by Pew Research also reinforce the view that Americans have multiple goals for their elected representatives when it comes to immigration: border security, dealing with immigrants already in the country, and taking in refugees affected by war and violence.

 

More Direction From the People

What else do the people want their elected representatives to do? The answer can be extremely involved (and complex), but there are several additional areas I can highlight where the data show clear majority support for government policy actions.

 

Americans See Healthcare and Education as Important but Don’t Have a Clear Mandate

There are two areas of life to which the public attaches high importance, but about which there is no clear agreement on what the government should be doing. One is healthcare, an issue that consistently appears near the top of the list of most important problems facing the nation, and obviously an issue of great concern to presidential candidates. But, as I recently summarized, “Healthcare is clearly a complex and often mysterious part of most Americans’ lives, and public opinion on the issue reflects this underlying messiness and complexity. Americans have mixed views about almost all aspects of the healthcare system and clearly have not yet come to a firm collective judgment on suggested reforms.”

Education is another high priority for Americans, but one where the federal government’s role in the eyes of the public isn’t totally clear. Both the American people and school superintendents agree on the critical importance of teachers, so I presume the public would welcome efforts by the federal government to make the teaching profession more attractive and more rewarding. Americans also most likely recognize that education is a key to the future of the job market in a time of growing transition from manual labor to knowledge work. But the failure of the federal government’s massive effort to get involved in education with the No Child Left Behind legislation underscores the complexities of exactly what the federal government should or should not be doing in education, historically a locally controlled part of our American society.

 

 

 

Supreme Court sets date for Louisiana abortion case

https://thehill.com/policy/healthcare/abortion/472113-supreme-court-sets-date-for-louisiana-abortion-case?utm_source=&utm_medium=email&utm_campaign=26264

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The Supreme Court has set a date, March 4, to hear oral arguments in a case over a Louisiana abortion law

The hot-button case is about a Louisiana law that would require doctors who perform abortions to have admitting privileges at a local hospital. Critics say this is aimed at forcing abortion clinics to close. 

In February, the court ruled to prevent the law from taking effect while it faces a legal challenge. Chief Justice John Roberts joined the liberal justices in this decision, but it is unclear whether he would vote to block the law permanently.

A similar law in Texas was struck down 5-3 in 2016, but Roberts voted to uphold that law at the time. Justice Anthony Kennedy has retired since then.

The case will be the first abortion case heard by the high court since Trump nominees Neil Gorsuch and Brett Kavanaugh have joined the bench.

“All eyes must be on the Supreme Court come March. This case will have lasting consequences for abortion access across the country. Many states have been openly defying Supreme Court decisions in an effort to criminalize abortion,” the Center for Reproductive Rights CEO Nancy Northup said in a statement Tuesday.

“At this critical juncture, the Court needs to set those states straight. If they don’t, Louisiana will be left with a single abortion provider at just one clinic, and other states could soon follow,” Northup added.

In recent months, a number of states have passed laws to restrict abortion. Many have been challenged or blocked in court.