Civil Disobedience and Health Care

By Dr. Jeff Mirus ( bio - articles - email ) | Sep 14, 2012

Writing in the October issue of First Things, R. R. Reno and Fr. Thomas Joseph White, OP address the question of civil disobedience in response to the Affordable Care Act and the HHS mandate requiring insurance coverage for contraception, sterilization and abortifacient drugs. Coincidentally, I received a notice today from my health insurance company, Anthem Blue Cross and Blue Shield, announcing that it has expanded its coverage of contraception and sterilization. One assumes, given the legal pressures behind this change, that “contraception” includes abortifacient “contraception”, since this reality is typically obscured.

Reno is the editor of First Things and Fr. White is director of the Thomistic Institute at the Dominican House of Studies in Washington, DC. Reno and White believe that the HHS mandate is, for Catholics, “A Mandate to Disobey”, which is the title of the article. They are certainly right in urging that, whatever happens to the HHS Mandate, “we cannot presume that we will win these debates” in the continuing effort of progressives to coerce everyone into accepting the sexual revolution as a basic human right. Therefore, they counsel, “we need to begin planning for the possibility of civil disobedience.”

In this particular article, they assess the pros and cons of three tactics of civil disobedience which might be used to resist the HHS mandate as it is currently framed. Here is a brief summary:

1. Refuse to include contraception, sterilization, and abortion-inducing drugs in health policies provided by employers: In favor of this tactic is that it is a very clear witness, and it sets a pattern of clear resistance right from the start, before things get any worse. Against this tactic is that no commercial company is likely to offer noncompliant policies, self-insured employers will be slapped with an “excise tax” of $100 per person per day, and the accumulation of the tax will be publicly invisible.
2. Opt out by not providing health policies to employees: On the pro side, the penalty for this would be a maximum of $2,000 per employee per year for the largest employers (and less for others) which is a small part of what they would otherwise spend on health insurance, so the savings could be passed along as increased compensation, and they could still set up a “cafeteria plan” which enables employees to purchase their own insurance in a tax-advantaged way. On the con side, individual policies must also comply with the mandate, so this tactic will simply shift the moral problem to the individual employee.
3. Obey the law but use its loopholes to provide moral health insurance: The Affordable Care Act does not cover all health plans; specifically, it omits self-insured student plans and self-insured association plans, which are based on “association” rather than “employment”. But both kinds of plans are rare; association plans are permitted in only a few states. In favor of this approach is that developing self-insured association plans based on “residency in a diocese or membership in organizations such as the Knights of Columbus will allow Catholics to begin to create an independent system for financing health insurance that can be run in accordance with Catholic teaching.” Against the idea is the difficulty of establishing such plans, including adequate funding and the political effort required to expand their availability. Also, individuals who purchase this coverage will pay the prescribed fine (“tax”) for not choosing a plan which complies with the regulations of the Affordable Care Act—but those compliance rules might be changed through lobbying.

For obvious reasons, Reno and White prefer the third option, which if successful would establish a separate Catholic insurance system much like the separate Catholic school system.

Their analysis also caused me to reflect on how difficult it will be to combat government mandated coverage of contraception, sterilization and abortion-inducing drugs if companies and other organizations simply pass the moral dilemma down the line to the individual insured person. If the legal requirements on insurance companies create a situation in which the individual simply cannot find health insurance that does not cover these things, then the battle will probably be lost in short order.

Reno and White do not consider this aspect of the problem, but from a strategic point of view, this battle will very likely have to be fought at the level of larger entities which (as the authors suggest) either refuse to comply or provide a real insurance alternative, thereby providing a measure of protection to individuals. Incidentally, this is another example of the importance of intermediary institutions in a healthy culture (see Intermediary Institutions Represent, Preserve and Shape a Robust Culture). A society should never be characterized by an all-powerful State on the one side and isolated, disconnected, atomized individuals on the other. In this context, the political promise of “one man one vote” reveals itself to be a modern political myth.

Organization is necessary to effective resistance, and it is certainly necessary to the establishment of alternative insurance systems, which may be one of the most important strategic initiatives we can currently imagine. One would hope that one or more major insurance companies would simply refuse to comply, but I have as yet seen no evidence of this possibility. Many of us have insisted for years that the Knights of Columbus should expand from life insurance into health insurance. Catholic dioceses in the United States also have the organization and financial clout already in place to move in this direction—not just to be self-insured for their employees (which I believe many or most already are) but to work hard to establish association plans that non-employees can use. This could be a major step toward the revitalization of a genuinely Catholic health system, not least because insurance companies wield extraordinary and often decisive power over contemporary medical treatment.

This does not mean that political efforts to block the mandate should cease, but the establishment of alternative institutions is a far more comprehensive and ultimately superior way to strengthen society and culture as compared with reducing everything to political battles, regardless of the various temporary outcomes of those battles. Civil disobedience, when necessary, is extremely important. But it is far better to build the kinds of robust institutions which alone can ultimately change both the landscape and the importance of contemporary State-based politics.