Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, December 11, 2009

A Proposed Neutrality-Guaranteeing Addition to Stupak/Nelson, with Thanks

Many thanks to Rick for his thoughtful reflections on abortion-neutrality in the matter of health insurance reform legislation.  Rick is quite right that my sympathies are in keeping with his concerning whether abortion-neutrality ought be considered an 'end-game.'  I certainly don't mean to suggest that it ought.  There is of course very much to be said on this subject -- in particular, about how difficult I know it can be to be neutral for one limited purpose (getting an independently compelling piece of legislation passed), while being non-neutral more generally on the very same subject.  (Compartmentalizing ain't easy!)  Yet I have to be very brief at the moment (couple of chores shrieking at me even now!), so let me take this occasion just to propose one very simple addition to Stupak/Nelson, or to the reform legislation with Stupak/Nelson attached, that I think might make it altogether impossible to argue any longer that they are not abortion-neutral: 

To situate my proposal, note that the principal argument against Stupak/Nelson's neutrality, as I understand it, is that it would prohibit those who receive federal assistance from purchasing health insurance policies that cover abortion, and that no company now finds it convenient or economical to  offer separate policy-tracks one of which includes and the other of which excludes abortion coverage.  Since no insurer finds it convenient or economical to 'unbundle' abortion from other covered procedures, the argument continues, insurers won't voluntarily do that unbundling -- at least not for the benefit of those comparatively few people who would receive federal assistance.  And so one of two things will happen:  One possibility is that, since those comparatively few who seek federal assistance lack bargaining power relative to the insurers, they'll simply be, in effect, prevented from receiving federal assistance should Stupak/Nelson be put into place.  The other possibility is that the insurers simply stop offering abortion coverage to anyone.  That means we're faced, if we independently favor getting insurance reform legislation passed, with a Hobson's choice between either non-coverage for precisely those now lacking coverage whom the reform legislation aims to help, or ally-losing non-neutrality in the form of abortion coverage's no longer being available to people to whom it's available now. 

If this is correct, then it seems to me there is an easy, two-part solution:   

First, per suggestions I've made here before, repeal McCarran-Ferguson, which prevents Congress from regulating the insurance industry and insulates that industry from antitrust laws, altogether.  That is, permit direct federal regulation of the insurance industry just as we federally regulate all other financial intermediaries -- banks, investment compaines, securities firms, etc.  Repeal of the anachronism that is McC-F is warranted separately, of course, for reasons I have adduced in earlier posts here on the health insurance reform bills.  But here we have yet another reason.  

Then second, mandate that all health insurance companies that offer omnibus policies which cover abortion among other services, also  offer identical policies that do not cover abortion, irrespective of whether recipients of federal aid purchase policies from them.  Put the onus of unbundling abortion-covering and non-abortion-covering policies, in other words, on the insurance companies rather than on those who need federal assistance to acquire health insurance.  And make that requirement universal across companies, to capitalize on the fact that some companies will doubtless always be willing to offer abortion-covering policies, by enabling non-abortion-covering policies always to accompany -- in effect, to 'piggy back upon' -- abortion-covering ones.

It seems to me that this sort of change might be easy to add to the legislation, and that were it added, nobody could plausibly claim that it's non-neutral either doctrinally speaking or practically speaking.

What think you all? 

While I am at it here, let me please thank Carter Snead, a brilliant and deeply morally inspiring colleague of Rick's (like Rick himself!) and old friend of mine, who has very much sharpened my thinking on this and related subjects over the years since our 10th Circuit clerkship days a ... oh heavens! ... decade ago.  He's not to be blamed for any screw-up in this proposal, since it's only just occurred to me in response to a challenge Carter put to me in response to my earlier post; but he is certainly to be credited with having occasioned my lighting upon this as a perhaps plausible start.

All best,

Bob

https://mirrorofjustice.blogs.com/mirrorofjustice/2009/12/a-proposed-neutralityguaranteeing-addition-to-stupaknelson-with-thanks.html

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