The baseline set by the ACA is NOT a matter of obligation between parents
and children. In that regard, the parent has no obligation to obtain
health coverage for his non-minor daughters (although the 12 year old,
either now or sometime later but before the age of majority, might need
emergency contraception for health reasons, and then the parent might
indeed have some obligation to cover or pay for the service).
The baseline is the minimum coverage requirements ("essential services,"
which include pregnancy prevention services) for policies that will satisfy
the ACA. In the Missouri case, allowing the parent to buy a policy that
excludes those services puts the insured daughters at increased risk of
unwanted pregnancy. And I'm sure we all agree that unwanted pregnancies
impose substantial costs (many of which are not covered by health
insurance) on third parties, including but not limited to the women who
experience such pregnancies.
Here's another analogy -- a parent wants to buy her non-minor child a car,
but the parent makes a religious freedom argument that she should be free
to buy a car without seat belts. (Assume this is a sincere religious
claim.) The parent of course has no obligation to buy the car at all, but
if we allow that exemption, we allow the parent to put the child at
increased risk of serious injury. Of course, we could frame the objection
in terms of the government's compelling interest in reducing the risk of
that kind of injury. But we could also say that the parent is imposing
costs on the child (who is tempted to take the free but less safe car) as
well as other third parties (insurors, who might have to pay more in case
of an accident, or other drivers, who might face increased liability for
injury.) The real ACA case might be stronger in terms of negative
externalities than the hypothetical car case, because the ACA involves both
universal obligation (everyone, including those non-minor daughters, must
be insured) and entitlement (a policy that satisfies the ACA must include
essential services).
On Sat, Aug 17, 2013 at 12:05 AM, Scarberry, Mark <
mark.scarbe...@pepperdine.edu> wrote:
> Eugene has a very good point. My employer gives me a choice of signing up
> for (1) employee-only health insurance (lowest cost) , (2)
> employee-plus-one-dependent insurance (higher cost), or (3)
> employee-plus-two-or-more-dependents insurance (highest cost). (And then
> the premiums are also different depending on whether I choose an HMO or an
> EPO or a PPO plan.) That’s probably typical of employers who offer coverage
> beyond just the employee. ****
>
> ** **
>
> I don’t believe the law requires me to sign up for a plan that provides
> coverage for any or all of the members of my family. A child can stay on
> the parent’s plan until 26 under the ACA, but that doesn’t mean the parent
> has to sign the child up for coverage; at least I don’t think it does. ***
> *
>
> ** **
>
> My contribution to the monthly premiums under the “employee plus two or
> more dependents” option is the same whether I’m covering 2 dependents or
> 12. But in any event the coverage only extends to the dependents that I
> sign up. I could, for example, have several children ages 18 to 26, and I
> could sign up all of them, or none of them, or some of them.****
>
> ** **
>
> Mark****
>
> ** **
>
> Mark S. Scarberry****
>
> Professor of Law****
>
> Pepperdine Univ. School of Law****
>
> ** **
>
> ** **
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu<religionlaw-boun...@lists.ucla.edu>]
> *On Behalf Of *Volokh, Eugene
> *Sent:* Friday, August 16, 2013 8:36 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: New Twist On Challenge to ACA Contraceptive Mandate****
>
> ** **
>
> But wait: How can you read ACA as setting a baseline that
> *the parents *should guarantee their adult children a full bundle of
> health services? The ACA doesn’t require parents to do this. It allows
> parents to do this, and many parents do indeed do this, but adult children
> have no right vis-à-vis the parents to get insurance coverage. The father
> is free to just tell his children, “Sorry, I won’t get you health
> coverage”; that’s not “taking” health coverage from them, it’s just
> choosing not to give health coverage to them. How is it “taking” for him
> to offer to give less than complete health coverage to them?****
>
> ** **
>
> Eugene****
>
> ** **
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu<religionlaw-boun...@lists.ucla.edu>]
> *On Behalf Of *Ira Lupu
> *Sent:* Friday, August 16, 2013 6:07 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: New Twist On Challenge to ACA Contraceptive Mandate****
>
> ** **
>
> Eugene and I agree that this legislator is not substantially burdened in
> his religious freedom, because he is under no duty to buy a family policy.
> He can avoid the burden without the government penalizing him.****
>
> So he is in a different position than employers, like Hobby Lobby, who
> will have to pay a penalty if they drop their health coverage of employees.
> ****
>
> ** **
>
> But the question of "imposing costs" on his daughters is not as simple as
> Eugene and others seem to want to make it. This is a classic baseline
> problem. If the baseline for the daughters is no insurance coverage, then
> their father seems to want to make them better off (just not as well off as
> he might). But if the baseline is the full bundle of health services that
> the United States has asserted should be guaranteed to women covered by a
> policy that satisfies ACA, then the daughters are worse off, because their
> father has asserted his religious freedom as a justification for talking
> one essential (according to the government) item out of their bundle.****
>
> ** **
>
> (Sometimes I think that what people see in these ACA cases is what they
> want to see, but I suppose I am no more capable of escaping that tendency
> than anyone else.)****
>
> ** **
>
> _______________________________________________
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>
--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
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