“Hijacking, evidently, is this year’s broccoli”

By Gregory M. Lipper

Linda Greenhouse has another must-read column about the Supreme Court contraception cases, and she predicts that the religious objectors will reject the compromise proposed by the Court in Tuesday’s order requesting supplemental briefing:

Would opt-out-without-notice serve just as well? If women would still get their coverage, probably it would. Will the religious interests resist taking “yes” for an answer, as they have from the beginning of this litigation?

Probably they will, because they are after bigger game: getting the Supreme Court to interpret the Religious Freedom Restoration Act to mean anything they say it means.

Relatedly, I discussed (along with Jeffrey Rosen and Michael Moreland) both the Zubik oral argument and supplemental-briefing order, on the National Constitution Center’s We the People podcast; you can listen here.

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United for Separation of Church and State.

‘The Week in Health Law’ Podcast

By Nicolas Terry and Frank Pasquale

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This week we interviewed Christopher Robertson, a professor and associate dean at the James E. Rogers College of Law, University of Arizona, and affiliated faculty with the Petrie Flom Center for Health Care Policy, Bioethics and Biotechnology at Harvard. Robertson also leads the Regulatory Science program, a partnership with the Arizona Health Sciences Center and the Critical Path Institute.

We mainly discussed Robertson’s new book with past TWIHL guest Aaron Kesselheim, Blinding as a Solution to Bias:  Strengthening Biomedical Science, Forensic Science, and Law. The book is a tour de force collection of approaches to improving our knowledge of optimal medical, legal, and forensic practices.

We also discussed some of Robertson’s recent contributions to insurance law and policy, including Scaling Cost-Sharing to Wages: How Employers Can Reduce Health Spending and Provide Greater Economic Security, as well as A Randomized Experiment of the Split Benefit Health Insurance Reform to Reduce High-Cost, Low-Value Consumption. The latter work, combined with Episode 47’s discussion with Mark Hall about employer-based exchanges, may well signal a gradual transition toward defined contribution (rather than defined benefit) health insurance plans.

FDA’s Relationship with Marijuana: It’s Complicated

By Elizabeth Guo

Marijuana and marijuana-derived products are top of mind for state legislatures these days. On March 10, the Virginia state legislature passed a bill legalizing cannabidiol oil, a marijuana-derived product, for patients who suffer from epilepsy. Other legislatures are actively debating measures to legalize cannabis-related products in their states, and many of these legislative proposals would allow cannabis-use for patients suffering from specific medical conditions. Last week, the Alabama state legislature debated a bill that would allow people to take cannabidiol to treat certain conditions, and Utah recently defeated a bill that would have allowed people with certain debilitating conditions to use a marijuana-related extract.

As more states pass bills allowing patients to use marijuana-derived products, will state laws clash with federal policies implemented by the Food and Drug Administration (FDA)?

Marijuana is complicated. Marijuana refers to the dried leaves and flowers of the cannabis plant. All marijuana plants contain a mixture of molecules, including cannabinoids. Different cannabinoids can have different effects, and scientists have identified more than 200 different cannabinoids from marijuana plants. Some of the most well known cannaboids in marijuana include tetrahydrocannibonol (THC), cannabidiol (CBD), and archidonoyl ethanolamide (anandamide). Continue reading

Little Sisters’ Case: A Forgotten Voice

By: Matthew Ryan

I love the Little Sisters of the Poor. As an undergraduate student, I fulfilled my public health program’s service requirements by volunteering at their nursing home in St. Louis. Each week, I would drive from my pristine, Jesuit college campus to the neglected part of the city. The sisters’ home was on an abandoned block without a street sign. The sister’s “neighbors” were a few burnt-out homes and mostly over-grown lots.

Inside, the nuns housed and loved the most vulnerable. I volunteered on the floor with residents suffering from dementia. I remember one nun in particular, Sister Isabella, who had given her entire life to caring for our elderly poor. Every hour or so, Sister Isabella would greet one resident who could no longer speak audibly nor open her eyes. Sister Isabella would hug her, sing to her, and often take her outside to feel the sunshine. This, in addition, to cleaning up after the residents, leading prayer before meals, and ensuring each resident got out of his or her bed each day.

Sister Isabella—and the Little Sisters in general—have remained imprinted in my memory. They have been a tremendous example to follow. When the rest of society, many Catholic churches included, had given up on the “least of our brothers and sisters,” the Little Sisters quietly went about doing the work of God. My admiration for them has made the recent Supreme Court case—and the battle over the Affordable Care Act’s contraceptive coverage—all the more difficult. Continue reading

Health Care Politics in the US South

by Emma Sandoe

Courtesy of Vanderbilt Center for Medicine, Health, and Society http://www.vanderbilt.edu/mhs/the-politi…

This month I attended the Politics of Health Care in the US South conference held at Vanderbilt. This conference was cosponsored by the Anna Julia Cooper Center at Wake Forest. Instead of a lengthy conference summary, I’ll attempt to capture some of the key lessons I learned to better understand the politics of the South.

What is the South?

There is no other region of the country with such a strong personal identification and complex emotional reaction as the South. Californians don’t identify as “Westerners;” “New Englander” inspires connotations of sleepy scenes of snow and hot chocolate; and while you may get a rare character that strongly identifies as a “Midwesterner,” there is a clear difference in the passion that a Minnesotan speaks of their homeland compared to a Tennessean. But despite the fact that the words “the South” strikes passion in its residents, historical and modern important moments in our nations conversation on race, and a specific cultural identity, there is really no common definition of the geographic South. Modern politics make the inclusion of Maryland and DC counter to our understanding of the deep red political vote. Texas and Florida have their own unique identities and their vast populations often skew any analysis of the region. Each unique issue in the South first requires a definition of what geographic region you are discussing.

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About that Order for Supplemental Briefing in Zubik v. Burwell

Photo: Pen & Parchment

Flickr/Creative Commons—Christa Uymatiao

By Gregory M. Lipper

This afternoon the Supreme Court requested supplemental briefing in Zubik v. Burwell and the other challenges to the contraceptive-coverage accommodation, as follows: “The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

And in so doing, the Court offered a proposal of its own (I’ve added paragraph breaks and numbering):

[1] For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds.

[2] Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees.

[3] At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.

Although it’s foolish to read tea leaves, read them I shall:

1. I think that this is a decent sign for the government. It was clear from last week’s argument that four Justices would vote to uphold the accommodation; but the potential fifth vote, Justice Kennedy, seemed to be skeptical of the government’s arguments. This order suggests that at least five Justices (including Justice Kennedy) seem to think that the challengers’ proposed alternatives to the accommodation (create separate, contraceptive-only policies and require women to seek them out; expand Title X clinics; and other Rube Goldberg-schemes) harm women by preventing them from receiving seamless and convenient coverage. If the Court thought that those other alternatives were sufficient, then it wouldn’t be looking for a way to ensure that women retained accommodation-style seamless coverage.

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The Unintended Uninsured: The Affordable Care Act’s Coverage Gap

[Cross posted from the Harvard Law and Policy Review]

By Julian Polaris

This is a golden age for access to healthcare in America. In 2015, over 90% of Americans had health coverage, the highest insurance ratein the 50 years the federal government has collected insurance data. This astonishing progress is due in large part to the Affordable Care Act (ACA): President Obama recently announced that 20 million people are covered thanks to the ACA. The victory is bittersweet, however: had the ACA been implemented as designed, an additional three million people would have insurance today. This is the story of the “coverage gap,” a crack in the ACA created by the Supreme Court and left unrepaired in nineteen states. A crack so wide that three million low-income people have fallen through it.

The ACA, as originally passed, aimed to increase access to health coverage in two main ways. First, the Act expanded Medicaid, the public health plan for people with low income. Previously, most states had limited Medicaid eligibility to specific groups like children and pregnant women. The ACA enlarged and standardized the Medicaid program to cover all people who earn up to 138% of the federal poverty level (FPL). The federal government picks up 90% of the cost of healthcare services for newly eligible beneficiaries, whereas costs in traditional Medicaid are split closer to 50-50.

Second, the ACA established the health insurance “exchanges,” portals in each state where consumers can shop for standardized plans that aren’t tied to a particular employer. Federal tax credits are available to subsidize exchange coverage for those earning 100 to 400% of the FPL. Continue reading

The Petrie-Flom Center & Coalition to Transform Advanced Care Launch “The Project on Advanced Care and Health Policy”

The Project on Advanced Care and Health Policy will foster development of improved models of care for individuals with serious advanced illness nearing end-of-life, through interdisciplinary analysis of important health law and policy issues.

March 28, 2016 – The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the Coalition to Transform Advanced Care (C-TAC) today announced a new collaboration, The Project on Advanced Care and Health Policy.

This initiative is prompted by the fact that current health law policy and regulation, developed largely in a fee-for service environment with siloed providers, creates barriers that may impede widespread adoption of improved models of care for those with advanced illness. The Project will seek to address this problem through policy and research projects that will identify and analyze these barriers, and propose policy solutions that promote development and growth of successful programs. This may entail developing proposed regulatory approaches for the advanced care delivery model that could be adopted by policymakers at the state and federal levels, as well as exploration of potential payment methodologies for this model of care.  Continue reading

The Economist on Contraceptive Coverage and Misleading Metaphors

By Gregory M. Lipper

The Economist is not buying the challengers’ claim that the provision of contraceptive coverage—by third parties—is an act of “hijacking”:

When the government arranges for contraceptive coverage with the insurance company used by the religious charity, it is not commandeering anybody’s property. Nor is it taking metaphorical control of the group’s health insurance plan. Instead, the government is seeking to fulfil Obamacare’s near-universal guarantee to female employees by working with the same insurance company or third-party plan administrator that provides the rest of the employee’s health benefits. Neither the insurance company nor the plan is the property of the religious charity: Aetna is not a wholly owned subsidiary of Catholic Charities. The non-profit and the insurer are independent entities.  When a school brings a child to a playground that his parents (for some reason) opt to avoid, the teachers are not “hijacking” the swingset. They are using a resource for the child’s benefit. The parents may be displeased about the school trip to the forbidden playground, but any complaint they raise would necessarily have a paternalistic flavour. Employers do not have such a role vis-a-vis their employees.

Read the full essay here.

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United for Separation of Church and State.

Regulating genetically modified mosquitoes

By Dalia Deak

Fears of spreading zika virus have renewed interest in the use of genetically modified mosquitoes to suppress disease, with recent attention focused on the UK firm Oxitec. Last week, the developing public health crisis around zika prompted the federal government to tentatively clear a small-scale field test for the first time in the United States, pending a public comment process on a draft environmental assessment submitted by Oxitec. It should be noted that a final approval for the trial will not be made until the FDA completes the public comment process.

The genetically modified insects, which are male Aedes aegypti mosquitoes, are designed to breed with the female Aedes aegypti mosquito (primarily responsible for transmitting zika, dengue fever, and other diseases) and contain a gene lethal to their offspring. The female mosquitoes lay eggs but the larvae die well before adulthood. Oxitec claims that recent tests have shown up to a 90% decrease in the population of the Aedes aegypti mosquito, with a recent test in Piracicaba (~100 miles from Sao Paulo in Brazil) showing an 82% decline. Tests have also been conducted in the Cayman Islands and Malaysia.

In the United States, Oxitec is in the process of waiting for FDA approval to conduct trials in the Florida Keys. However, this is relatively unclear and uncharted territory for the federal government in terms of what group should be responsible for the review, and the decision for the CVM jurisdiction in this case remains hotly debated. Jurisdictional debate exists between the U.S. Department of Agriculture and the FDA’s Center for Drug Evaluation and Research (CDER) and Center for Veterinary Medicine (CVM).

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Sex Markers in Official Documentation – Between Biology and Self-Identification

A recent civil action filed by LAMBDA Legal highlights a debate ongoing for the past several years on the issue of “sex-markers” in official documentation to the U.S courts. In different instances, plaintiffs and interest groups have sought to challenge the state’s sex-binary classification system when issuing official identification documents such as passports, birth certificates, driver’s licenses and more. Litigation and advocacy around sex-markers in official documentation may be roughly distinguished between groups advocating for easier access to the existing Male /Female categories (“M/F”), mostly by and for the trans community, and to groups asking to break the M/F distinction altogether in favor of an unspecified category: ”X”/”MF”/Unknown/Unspecified. This group is not seeking better access to the existing M/F categories, but is rather pursuing the goal of creating an all-inclusive new category for those who do not identify as males or females, sometimes also referred to as “third sex” or “third gender”.

These challenges were sometimes fruitful in generating administrative adjustments. For example, in 2011 it became possible to mark “X” instead of M/F on passports in Australia. In 2013 Germany approved a change in legislation that allows leaving the “sex” checkbox in birth certificates empty. These developments were presented very positively in the media with headlines like: “Germany got it right by offering a third gender option on birth certificates” in the Guardian, or: “Germany allows ‘indeterminate’ gender at birth” in the BBC, that portrayed them as victories for intersex and LGBT activists. Although the wish to open up sex categories in official documentation seems to be in line with progressive politics, some Intersex advocacy organizations have had misgivings about this line of advocacy. One argument is that being an Intersex or a Trans person does not necessarily dictate a non-specified gender identity and so conjoining intersexuality and transgenderism with non-specified gender identity is incorrect to say the least.

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NPRM Symposium: Consent and Consistency in the NPRM

By Luke Gelinas, Guest Blogger

  1.  Interpreting the proposed consent requirement

One of the most discussed and controversial aspects of the Department of Health and Human Services’ recent notice of proposed rule-making (NPRM), which stands to change the federal regulations governing research with human beings, is a new consent requirement for secondary research on bio-specimens.  ‘Secondary research’ involves leftover blood or tissue samples that are re-purposed for research after their original use as clinical samples or in prior research studies has been served.  Whereas the current regulations permit re-purposed samples to be used in research without consent so long as the samples are anonymized or de-identified, the new rule would require individuals to be notified that their samples will be used in research, and to give broad permission or consent for such use, before research using them is permitted.

One possible justification for the new consent requirement is what I will call the ‘rights-violation’ interpretation.  The rights-violation approach maintains that consent for research with biospecimens is ethically required to avoid a rights-violation—which is what, the view claims, using someone’s samples without their consent amounts to.

Defenders of this view face the challenge of saying precisely which right is violated by research with re-purposed specimens.  One idea is that the samples still count as part of the individual’s body, even if they are no longer spatially continuous with it, so that using them without consent infringes a bodily right.  A second possibility is that, even if donated specimens are not part of one’s body in the relevant sense, we yet have ownership interests in and claims to our biological materials, so that  something closer to a property right at stake.  A third view focuses on the personal health information that can be garnered from certain sorts of research with bio-specimens (e.g., research involving whole genome sequencing), claiming that privacy rights stand to be infringed when specimens are used without consent.  Each of these views raises complex ethical (and indeed in some cases metaphysical) issues that defenders of the rights-violation interpretation must work out.  Continue reading

The Zubik v. Burwell Oral Argument

Photo: Zubik v. Burwell Signs

Tim Ritz / Americans United for Separation of Church and State

By Gregory M. Lipper

Over at Rewire, I’ve analyzed yesterday’s oral argument in Zubik v. Burwell. Among other things, I address the recurring claim that the government was “hijacking” religious objectors’ health plans by arranging for third party insurers and plan administrators to provide contraceptive coverage to affected women:

The fear of hijacking might have made sense if we were talking about a plane instead of a plan. But an insurance company is not an employer’s personal property. If the insurance company, separately from the employer, wants to provide extra coverage to the employees, that’s none of the employer’s business—especially since that contraceptive coverage is guaranteed to women by federal law. At the argument, Clement compared the accommodation to the government running a contraception clinic out of the Little Sisters’ home, but the more apt analogy is that the government has set up shop across the street: The challengers simply have no legitimate interest in preventing the government from “hijacking” a nearby vacant lot.

You can read the full article at Rewire’s freshly redesigned website. And more on the “hijacking” argument here.

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United for Separation of Church and State.

TOMORROW, 3/25 in NYC! Book Talk & Panel: FDA in the 21st Century – The Challenges of Regulating Drugs and New Technologies

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FDA in the 21st Century:
The Challenges of Regulating Drugs and New Technologies

March 25, 2016 12:00 PM

92nd Street Y
1395 Lexington Ave. (at 92nd St.), New York, NY

Join co-editors Holly Fernandez Lynch (Petrie-Flom Executive Director) and I. Glenn Cohen (Petrie-Flom Faculty Director) and contributor Lewis Grossman (American University) for a discussion of FDA in the 21st Century: The Challenges of Regulating Drugs and New Technologies (Columbia University Press, 2015). This volume stems from the Center’s 2013 annual conference, which brought together leading experts from academia, government, and private industry to evaluate the FDA and to begin charting a course for the agency’s future.

This is a ticketed event. To learn more, visit the 92nd Street Y’s website!

Sponsored by the 92nd Street Young Men’s and Young Women’s Hebrew Association (New York, New York) and the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

‘The Week in Health Law’ Podcast

By Nicolas Terry and Frank Pasquale

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This week we talked with prolific health law scholar Mark Hall, Director of the Health Law and Policy Program and Fred D. & Elizabeth L. Turnage Professor of Law at Wake Forest University School of Law.

Our discussion started with Medicaid expansion and a fascinating paper, Medicaid Expansion Costs in North Carolina: A Frank Discussion (with Edwin Shoaf) that takes a rigorous cost-benefit approach to the topic. Next up we discussed the potential for employer private exchanges and some of their legal implications. Finally, we looked back on Mark’s 2014 frank assessment of the ACA. Check out Mark’s SSRN page for more of his contributions to the health law and policy literature.

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy. Subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app. Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

PANEL (4/5): The National Security Implications of the Genetics Revolution

 

Technology Concept

The National Security Implications of the Genetics Revolution
April 5, 2016 12:00 PM
Pound Hall, Room 101
Harvard Law School, 1536 Massachusetts Ave., Cambridge, MA

 

Panelists:

  • Jamie Metzl, JD ’97, Senior Fellow for Technology and National Security of the Atlantic Council. He has served on the U.S. National Security Council, State Department, and Senate Foreign Relations Committee, as Executive Vice President of the Asia Society and with the United Nations in Cambodia. A globally syndicated columnist and regular guest on national and international media, he is the author of a history of the Cambodian genocide and the novels The Depths of the Sea and Genesis Code.

Topic: The National Security Implications of the Genetics Revolution

  • George J. Annas, JD, MPH, William Fairfield Warren Distinguished Professor and Chair of the Department of Health Law, Bioethics & Human Rights, Boston University School of Public Health; Professor in the Boston University School of Medicine, and School of Law

Topic: Post-9/11 Uses of Public Health and Medicine by National Security Agencies 

  • Jonathan D. Moreno, PhD, David and Lyn Silfen University Professor of Ethics, Perelman School of Medicine, University of Pennsylvania

Topic: National Security and Biology

This event is free and open to the public. Lunch will be provided.

Cosponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, the Harvard National Security & Law Association, the Harvard National Security Journal, and the Center for Bioethics at Harvard Medical School, with support from the Oswald DeN. Cammann Fund at Harvard University.

Tax exemptions and nonprofit hospitals: An uncertain future

Of the 4,926 community hospitals in the United States, the majority, about 58 percent (2,870) are not-for-profit. About 21 percent (1,053) are for-profit, and the remainder are owned by state and local governments. Hospitals serve communities by caring for the sick, but they’re also often billion dollar enterprises and tension between the mission and business model of nonprofit hospitals is growing.

Nonprofit hospitals are expected to benefit their community in exchange for their tax-exempt status. Hospitals have most commonly fulfilled this obligation by providing uncompensated care, or charity care. However, this has historically been poorly regulated. A 2013 study found that on average nonprofit hospitals spent 7.5 percent of their operating expenses on community benefit activities, and 85 percent of that was charity care. However, there was major variation in the amount allocated to community benefit, ranging from 1 percent to 20 percent.

The Affordable Care Act introduced new community benefit reporting requirements for nonprofit hospitals in an effort to bring more clarity and accountability to the amount and quality of “community benefits” delivered in exchange for 501(c)3 tax exemption. The value of the nonprofit tax exemptions for hospitals is significant: it was estimated at almost $25 billion in 2011. For states and municipalities in particular, the foregone tax revenue is nontrivial, especially as their taxes bases were squeezed by the burst of the housing bubble in 2008. It should be little surprise, then, that municipalities have started to scrutinize the tax exemptions for nonprofit hospitals.

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Zubik v. Burwell, Part 6: The Accommodation is the Least-Restrictive Option

Photo: Demonstration

Flickr/Creative Commons—Joe Brusky

By Gregory M. Lipper

(Read Part 1, Part 2, Part 3, Part 4, and Part 5 of this series)

The plaintiffs in Zubik v. Burwell and its siblings seek to block their students and employees from receiving contraceptive coverage from third-party insurance companies and plan administrators. Even though the plaintiffs need neither provide nor pay for contraceptive coverage, they argue that the government can and must adopt one or more purportedly less-restrictive alternatives, including (1) providing contraceptives or contraceptive-specific coverage to women directly; (2) offering grants to other entities that provide contraceptives; (3) offering tax credits or tax deductions to women required to pay for contraceptives; or (4) expanding eligibility for programs that provide contraceptives to low-income women. (The University of Notre Dame, whose petition for Supreme Court review is pending, has also argued that it could provide coverage for natural family planning; the Seventh Circuit correctly noted that natural family planning “is not contraception at all.”)

These proposed alternatives would not achieve the government’s interest as effectively as the accommodation; they would, instead, impose financial or logistical barriers on women, thwarting their seamless access to contraceptives and demoting contraceptives to junior-varsity care. Women would be forced to identify and register for yet another new program, perhaps see a different doctor for contraception-related care, and possibly pay out of pocket. (For more on the problems with the proposed alternatives, see my organization’s brief on behalf of 240 students, faculty, and staff at religiously affiliated universities, as well as the brief of health law policy experts prepared by Hogan Lovells.)

By requiring women to jump through logistical hoops and incur additonal costs, the proposed alternatives would reduce access to and use of contraceptives. Studies show that even minor barriers can dramatically reduce contraceptive access: Continue reading

Zubik v. Burwell, Part 5: These Exceptions are Unexceptional

Photo: Bronze IUD

Flickr/Creative Commons—Sarah Mirk

By Gregory M. Lipper

(Read Part 1, Part 2, Part 3Part 4, and Part 6 of this series)

Despite birth control’s considerable benefits, the challengers in Zubik v. Burwell argue that the government lacks a compelling interest in applying the contraceptive accommodation to religious objectors. No matter how important it is to ensure that women have access to contraceptive coverage, the challengers say, the presence of other exceptions to the coverage requirements makes the interest in providing contraceptive coverage less than compelling. If contraceptive coverage were truly important, the argument goes, then there wouldn’t be any exceptions at all.

This argument proves too much—way too much. Almost all laws have exceptions. As the government explains in its brief to the Supreme Court, “Numerous organizations are not required to pay taxes; half the country’s draft-age population is exempt from registering for the draft; and Title VII does not apply to millions of employers with fewer than 15 employees, see 42 U.S.C. 2000e(b). Yet no one would suggest that raising tax revenue, raising an army, and combating employment discrimination are not compelling interests.” Indeed, despite Title VII’s exemption for small employers, the Supreme Court in Hobby Lobby reiterated that “[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race…”

Despite these examples, the plaintiffs claim that the government’s interest in contraceptive coverage is undermined by three exceptions: (1) employers with fewer than fifty employees need not provide health insurance at all; (2) houses of worship are exempted from the contraceptive-coverage requirement; and (3) grandfathered employers are exempted from some coverage requirements, including the one pertaining to contraceptives. But none of these make the government’s interest any less compelling.

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