Take Women’s Health Care Out of Employers’ Hands: The Hobby Lobby Problem and the Single-Payer Solution

I was not shocked to learn that the SCOTUS sided in favor of a for-profit corporation over real human beings in the Burwell v. Hobby Lobby Stores, Inc. considering its recent history. The Roberts court strengthened the concept of corporate personhood in the Citizen’s United v. Federal Election Commission case in 2010, ruling that businesses were entitled to the same right of political speech—spending—as any individual citizen. On Monday, five male Supreme Court justices ruled that “closely-held companies”  were patriarchal entities who shared religious identities. The 5-4 decision allows particular employers the right to opt out of the Affordable Care Act’s contraceptive coverage requirement, ultimately leaving women without the ability to buy coverage that includes certain forms of preventive care.

The ruling is further evidence of the growing power of business in our political and economic system. Given the power of individuals with immense and disproportionate capital, wealth, and influence, “closely-held companies” and publicly traded corporations have the ability to limit women’s choices in the so-called “free” marketplace. Such a political and economic system allows Hobby Lobby to deny insurance plans  that include preventive care for women while, according to Mother Jones writer Molly Redden, investing more than $73 million in mutual funds associated with producing emergency contraceptive pills and drugs used in performing abortions. So much for consistency and individual liberty if your name is not followed by the title, “incorporated,” and you possess female reproductive organs.

The Burwell ruling underscores the limits of employer-based insurance and the need for a single-payer system. Why not take these sorts of health questions out of the hands of employers who share myopic views about medicine and women’s health? Why not pool our resources and bargain as citizens for affordable comprehensive coverage for everyone?

The New Republic’s Jonathan Cohn and political scientist Howard Schweber also argued that the SCOTUS ruling is evidence for the need of a single-payer system. What if I told you that the ACA included a pathway towards potentially creating one?

The path lays in an unheralded ACA provision that Democratic senators Ron Wyden and Mary Landrieu and then-Republican Senator Scott Brown sponsored in 2011—the “Empowering States to Innovate Act.” The law allows states to opt out of the healthcare exchanges starting in 2017 if they can prove that they could provide comprehensive coverage comparable to the ACA-established marketplaces. Vermont is currently seeking such a strategy by trying to establish its Green Mountain Health Care. Vermont Governor Peter Shumlin signed a bill allowing the state government to pursue a single-payer plan in May 2011 that would eliminate employer-based insurance. Of course, those advocating for Green Mountain Health Care have run into political and economic obstacles, including the contentious debate about the plan’s structure and costs. But we should expect a rigorous and contentious debate considering the ambitious, if not radical, scope of the plan. [1]

There is a catch. Supplanting employer-based systems would first require intense political organizing and movement building on a state level. It would entail fighting a political conflict against corporate interests and their political lackeys. It would necessitate building a dynamic broad-based multi-racial coalition akin to the southern Moral Mondays movement comprised of labor unions, men and women workers from various sectors, the unemployed, health care advocates, and sympathetic politicians. It is important to note that such a movement would face serious challenges and questions that would have to be addressed. How would one organize support for a single-payer system in heavily Republican states where Governors refuse to even expand Medicaid? According to one of the architects of Vermont’s proposed health care system, Harvard scholar Willian C. Hsaio, the existence of Medicaid, already embedded deeply in the structure of the U.S. health care system, could hinder states from achieving maximum flexibility when devising and implementing plans.[2]

Such a movement would illustrate how comprehensive health care for everyone is a human right and, this is very important, a public good, not a private commodity. The fact that the health care system needed reform in the first place demonstrates how wasteful and ineffectual employer- and market-based health insurance is. Health care for women, as Justice Ruth Bader Ginsburg argued, is an essential good. For those who worship economic growth, full coverage for women could help boost labor productivity and drive economic expansion. It is also essential to realize that liberty and the pursuit of happiness include the pursuit of freedom and pleasure. Reducing health care and contraception only to issues of labor productivity dehumanizes women by stigmatizing their sexuality. There does not seem to be a problem that Hobby Lobby reinforces male privilege within health coverage among companies who decide to opt out. It is reported that Hobby Lobby would still cover Viagra and vasectomies for men. Why should women pay for Viagra for men to experience and act on sexual desires while other policies penalize women for wanting to express their own? Male advocates for Hobby Lobby should not be so myopic about birth control. Part of functioning in a democratic society entails paying for services for others that we may not use, or even support. We pay for those services because it is just. As citizens who comprise roughly half, if not more than 50 percent of the population, the argument that women are entitled to equal and full coverage under the law makes sense in a supposedly free marketplace.

Ultimately, Burwell v. Hobby Lobby was not just about the freedom of CEOs and corporate persons. It is about the labor (which are human) rights of women workers. Justice Ginsburg’s citation of a 1992 Planned Parenthood case in her dissent reflects this point:  “’The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.’”[3] Burwell was also about inequality. Gender discrimination and inequality was embedded in the pre-ACA for-profit insurance system. Justice Ginsburg also points to this in her dissent. Female workers devoted 68 percent more of their earnings to acquiring health care generally.[4] It is reasonable to surmise that part of the gap can be attributed to the need for preventive (or contraceptive) care. Now, couple this point with the fact that women had to devote a greater share of their earnings, which remain less than men’s incomes on average, and one can see how striking a contraceptive mandate for 52 percent of the workforce could exacerbate gender-based economic inequality. Eliminating employer-based insurance could address systemic inequalities in health care.

The burning question that a struggle for non-employer-based insurance would have to address is who should pay. This question is where the movement would have to articulate and stand by the value that health care is an essential and public good. SCOTUS’s decision reveals the need for an actual social contract. Large corporations would have to pay their fair share. Tax the global earnings of multinational corporations, such as Apple and Pfizer, that often hoard money abroad. There is no reason why we should bear a greater tax burden if businesses are not willing to invest fully in women’s health. If universal health care could improve the life chances of every person living and working in the United States, then we should all pay. Let’s invest in ourselves. We would only be taking Judge Alito’s advice to “let the government pay”—we would just apply that principle more broadly.[5]

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[1] The Green Mountain Health Care system is based upon a plan created by a group of advocates led by Harvard scholar William Hsiao. See William C. Hsiao, Anna Gosline Knight, Steven Kappel, and Nicolae Done, “What Other States Can Learn from Vermont’s Bold Experiment:  Embracing a Single-Payer Health Care Financing System,” Health Affairs 30, No. 7 (2011):  1232-1241.

[2] Hsaio, 1233.

[3] Ruth Bader Ginsburg, Dissent in Burwell v. Hobby Lobby, 2.

[4] Ginsburg, 3.

[5] Samuel Alito, Burwell v. Hobby Lobby, 41; Ginsburg, 28.