Zelinsky: Use of HSAs and HRAs as Compromise to ACA Contraceptive Mandate Dispute

stethoscopeEd Zelinsky (Cardozo) has an interesting post on his OUP blog discussing a possible compromise in the on-going dispute between for-profit religious corporations, like Hobby Lobby, and the Obama administration’s Affordable Care Act’s (ACA’s) contraceptive coverage mandate.

Here’s a taste:

This entire controversy is unnecessary. The tax law contains devices for reconciling the religious concerns of employers like Hobby Lobby with the policy of expanding medical coverage: health savings accounts (HSAs) and health reimbursement arrangements (HRAs). The current regulatory exemption from the contraception mandate should be amended to include for-profit employers and to exempt from the federal contraception mandate employers (both non-profit and profit-making) who maintain HSAs or HRAs for their respective employees. Compromise along these lines would respect the genuinely-held views of religious minorities while implementing the federal policy of broadening access to health care.

An HSA/HRA compromise would eliminate the complicity of religious employers in the provision of contraception methods to which they object while enabling such employers’ employees to obtain on a pre-tax basis any medicines or devices such employees want, including contraception to which their employers object. Employers’ payments into their employees’ HSAs and HRAs would be the equivalent of the cash wages paid to such employees, wages which the employees are free to spend as they choose.

Personally, I do not see a RFRA or free exercise problem with ACA’s mandate because it is not a law that targets religion or otherwise substantially burdens religious rights of individuals. For-profit corporations do not and should have have free exercise rights, and the exemption from the law for for-profit religious employers would permit them to inappropriately interfere with the personal health care decisions of their employees.  I also do not know what “religious minorities” Ed is referring to, since corporations like Hobby Lobby seek to impose their very much dominant Christian religious practices on their employees (Christian and non-Christian alike).

All that being said, Ed should be given credit for thinking outside of the box and coming up with a compromise which might satisfy both sides of the debate.  The likelihood of this suggestion being taken up in the short-term now that the Supreme Court has granted cert. in the Hobby Lobby case is unlikely.  However, if Hobby Lobby and similar religiously-oriented corporations should prevail (a real possibility with the current make-up of the court), then this proposal might be a way in which this type of much-needed health care coverage could be provided to employees of for-profit religious employers.

This Post Has 3 Comments

  1. Dominique Noth

    Paul (you may recall we met)

    It is a an outside the box idea of interest, but there is another take. The very effort to do that would admit what you and I know–that this was some attack on relgious freedom in the ACA as opposed to bending over backward to protect religous groups and seeking preventive care coverage without special blandishments. So Ed’s solution would instantly be interpreted as an admission that there was a nasty intent. Better to wait for the court, which on many grounds should instantly reject the Hobby Lobby thing–and if it doesn’t, that may be the time for inventive compromise.

  2. Tom Kamenick

    Get rid of the part of the law limiting HSA contributions to employees who have a high deductible health plan and we’ve got a deal!

  3. Patrick Harris

    “Personally, I do not see a RFRA or free exercise problem with ACA’s mandate because it is not a law that targets religion or otherwise substantially burdens religious rights of individuals.” This is one individual whose religious rights have been substantially burdened. As a DoD employee, I had to drop my health insurance because Uncle Sam offered no plan that excludes abortifacient, contraceptive and sterilization coverage for free. I am burdened because my premiums would be used to pay for these things at no cost to others. The mandate has done exactly the opposite of what ObabmaCare intended as I no longer have health insurance.

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