A baffling conflict

The legal mess where religion meets health care

The Obama administration has sided with a ruling by the state of California to require health insurers to cover abortion — even for religious organizations that object to the coverage. The decision by the U.S. Department of Health and Human Services, interpreting a federal law called the Weldon Amendment, is legally doubtful, and will probably be challenged in court.

The uncertainty of the law’s meaning illustrates how baffling the conflict has become over the intricate web of legal principles that surround health-care coverage when it collides with religious values.

The latest example — it’s not yet a legal case — began with the California Department of Managed Health Care, a state office that says it “protects consumers’ health-care rights and ensures a stable healthcare delivery system.” In 2014, the department told seven insurers that under state law, they weren’t allowed to offer coverage excluding abortion to religious organizations unless the organization predominantly employed and served people with its own religious beliefs.

This meant that some religious employers, like churches, could get abortion-free coverage. But Catholic hospitals and universities could not, because they employ and serve lots of non-Catholics.

The Obama administration took a similar but slightly more permissive approach in offering exemptions to mandatory contraceptive care under its Affordable Care Act. It exempted churches totally and extended a further exemption to religious employers who filed a certificate — provided that their insurers would offer the coverage.

That latter requirement was the focus of the Little Sisters of the Poor case that the Supreme Court failed to resolve this term.

But state laws on abortion coverage are governed by a different legal regime than federally mandated contraceptive care. The 1993 Religious Freedom Restoration Act bars Washington from imposing a “substantial burden” on most religious practice and was at stake in the 2014 Hobby Lobby case as well as the Little Sisters case. But it doesn’t apply to the states.

State entities are governed instead by the Weldon Amendment, first enacted in 2005 and re-enacted in subsequent annual health-care appropriations bills. The amendment says that no funds may be made available to any agency, program or government that discriminates against a “health-care entity” for not providing or funding abortions.

The idea is that providers can choose not to perform abortions, and no one can make them.

The law covers doctors and hospitals who oppose abortion. But it’s not clear whether it extends to insurance companies that provide coverage to both religious entities and non-religious ones.

In its letter to the seven insurers, California was saying that the federal law doesn’t bar the state from requiring insurers to cover abortion.

Anti-abortion activists complained to the Office of Civil Rights in the federal Department of Health and Human Services. On Wednesday, the department rejected their claims, endorsing California’s decision.

Its reasoning was put forth in a letter from Jocelyn Samuels, the head of the HHS civil rights office. She had to acknowledge that the language of the Weldon Amendment includes insurers. The law defines “health care entity” to mean not only doctors and hospitals but health-insurance plans. That would seem to render California’s rule illegal.

But Samuels reasoned

As global financial markets convulse in response to British citizens voting last week to leave the European Union, the stunning outcome of the U.K.’s referendum provides more questions than answers.

The heightened uncertainty, fueled by sudden institutional instability now compounding long-standing economic fragility and financial fluidity, is likely to cause an unprecedented mix of political turmoil, financial volatility and economic damage in the weeks ahead.

It also leaves us with seven lessons whose implications extend well beyond Britain.

1) Socio-political disconnects are everywhere: The “leave” decision is about much more than a narrow majority of citizens refusing to follow their political leaders. It should be seen as a notable rejection of the political and business elites, as well as “expert opinion.” And it also illustrates the regional divides that prevail following a period of low growth, especially growth that has benefited some groups more than others.

2) Bitter and divisive campaigns are the new normal in national politics: This bruising campaign fueled and was fed by the broader divisions in the country. As such, for way too many, the Brexit referendum decision ended up boiling down to a gross oversimplification — one that pitted economic well-being versus regaining sovereignty over immigration.

3) Assumptions from history no longer apply to established parties: Just like the Republican Party, which has taken a step away from free trade, it was the U.K. Conservatives, among the country’s major political parties, that was most deeply divided about the benefits of the world’s largest superfree-trade zone.

4) Anti-establishment and fringe parties can change politics even when they have no chance of gaining power: Facing the risk of some of his party’s base jumping to the U.K. Independence Party ahead of the last general election, Prime Minister David Cameron felt compelled to promise a referendum in order to secure a re-election of the Conservative Party.

Little did he realize the size of the gamble he was taking, one that has split his party. Reacting to Thursday’s vote, Cameron has announced he is stepping down.

5) Fringe politics can feed on themselves, including across borders: Just like the U.K. politics of anger was empowered by the rise of Donald Trump across the Atlantic, the “leave” vote is likely to embolden the anti-establishment movements that have already been gaining traction in much of Europe. And, within the United Kingdom, it is also leading to dissatisfaction in Scotland and Northern Ireland.

6) Financial markets, and the “wisdom of crowds” that is supposed to underpin them, are not any better at predicting such political outcomes than most people are: In the run-up to the Thursday vote, traders got comfortable with the notion that the “remain” camp would prevail.

The resulting multi-day rally in Sterling and equities were subsequently more than wiped out, and in a brutal fashion.

7) Add “Brexit” to a list of unthinkables that have become reality: Strange things happen when advanced economies persist in a new normal of protracted low growth and worsening inequality — things such as negative nominal interest rates and the emergence of Donald Trump as the presumptive Republican nominee.

And if the United Kingdom’s decision to leave the European Union does not wake up politicians elsewhere, this list will only get longer in the months to come.