Written by Don Byrd
Over the last several days a handful of courts have dismissed complaints about the Affordable Care Act’s contraception coverage mandate because the rule has yet to be finalized. Challenges from Notre Dame and Colorado Christian Universities, and the Diocese of Peoria were all too early, the courts concluded, because they currently face no penalty or restriction pending the rule change.
Here’s the court in the Notre Dame case, in a ruling on December 31 (pdf):
Notre Dame’s claims aren’t ripe, and they don’t have standing to bring them.
Both conclusions flow from the government’s creation of a safe harbor for certain employers (including Notre Dame) while it re-works the regulation. As a result, Notre Dame faces no penalty or restriction based on the existing regulatory requirement.
As the court noted, all but one of the cases brought by plaintiffs who enjoy this safe harbor have been dismissed on ripeness grounds. So, no big surprise here.
Meanwhile the debate over the mandate continues. One interesting perspective was raised by Elizabeth Sepper of Harvard Law’s Bill of Health blog. She says the reality of health economics leads to the conclusion that employer-provided benefits are wages that belong to the employee, moreso than the employer, suggesting the employer should have little say in how it is used.
Study after study shows that employers pay in wages whatever they don’t pay in health insurance premiums. Most recently, a study of Massachusetts’ health reform found that firms offering health insurance pay wages lower by an average of $6,058 (nearly exactly the cost of annual health insurance premiums). Each employee’s actual “salary” is wages plus the employer share of the health insurance premium. So, when a corporation purchases a health insurance plan that its employees (and their family members) may or may not use to buy contraception, it is no more paying for contraception than it does when employees use their wages to buy it.
