Monday, June 30, 2014

The Supreme Court’s Hobby Lobby Decision: Bad for women, bad for everyone

Today’s Supreme Court ruling in the “Hobby Lobby” case allows “closely held” for-profit companies to opt-out of the Affordable Care Act’s contraception mandate if it violates their religious beliefs.  The court went to great lengths to characterize the decision as being narrow in scope—initially applying only to coverage of contraception—but it may have a much broader impact, encouraging other for-profit employers to challenge the ACA’s coverage requirements.

In its 5-4 ruling on behalf of Hobby Lobby, the Supreme Court determined that closely held (family owned) small companies had religious freedom rights under a 1993 statute, the Religious Freedom Restoration Act (RFRA).  This is the first time that the court has ruled that some for-profit companies are covered by the RFRA, rather than just individual persons.   The Religious Freedom Restoration Act (RFRA) allows the federal government to impose requirements that violate a person’s religious beliefs only if the government can (1) demonstrate that it has a “compelling interest” in the requirement and (2) show that its compelling interest is being achieved in the “least restrictive” way possible.  The court “assumed” that the government had a “compelling interest” in requiring coverage of contraceptives but faulted the government for not achieving this interest in the least restrictive way possible as required by RFRA.  (The Washington Post has a good, plain English explanation of the three components of the ruling—that for-profit companies are potentially covered by the RFRA, that, “the Affordable Care Act substantially burdens these particular claimants’ practice of religion” and that, “Applying the ACA’s requirement is not the least restrictive means of serving a compelling government interest.”

In its written opinion, the Supreme Court majority went to great lengths to characterize the decision of being narrow in scope, applying only to the ACA’s contraception mandate, not other benefit requirements or anti-discrimination laws:

“This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.  Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.”

And only to “closely held,” family owned companies:

“These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to whom HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s applicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.”

Yet the court’s decision clearly opens the door for other for-profit “closely held” companies to challenge the ACA’s coverage requirement on the basis that they conflict with their owners’ religious beliefs. How many could potentially seek a religious exemption from the coverage mandates?  Well, such “closely held” companies are estimated to represent  90% of all businesses, employing 52% of the American workforce.  Most of them, of course, are not likely to seek a religious exemption from specific coverage requirements, and not all of them will prevail in court if they do.  But some will, perhaps for ideological reasons masquerading as a religious belief.

So the Supreme Court decision isn’t just about women’s access to contraception, which would be reason enough to be concerned,  (It is astounding to me that in 2014,  women’s access to contraception is even considered to be a subject of debate).  It is about whether employers that have religious objections to the ACA’s coverage mandates will be allowed to pick and choose which services to cover—excluding contraception today, maybe seeking to exclude vaccines or blood transfusions tomorrow, notwithstanding the Supreme Court’s assurances that the current decision does not “necessarily” apply to the other coverage requirements.

Today, the American College of Physicians issued a statement saying it was “deeply concerned” about the potential impact of the Supreme Court’s decision on public and individual health:

“We are concerned that allowing employers to carve-out exemptions to the ACA’s requirements that health insurance plans cover evidence-based preventive services without cost-sharing, including but not necessarily limited to contraception, will create substantial barriers to patients receiving appropriate medical care as recommended by their physicians.

We acknowledge that the Supreme Court has stated that, ‘This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.’   Allowing for-profit employers to exclude coverage for contraception is itself deeply concerning because of the demonstrated adverse impact it will have on women’s health. And, although we certainly hope that the Supreme Court’s decision does not result in for-profit employers obtaining exemptions for vaccinations and other evidence-based benefits, the ruling clearly does not preclude for-profit employers from challenging such mandates, or the courts from granting further coverage exemptions.  Rather,  it seems likely that the Supreme Court’s decision will open the door for more for-profit employers to seek exemptions from the ACA’s other insurance-coverage mandates on the basis that they violate their owners’ beliefs.”

The result of the Supreme Court’s ruling may be a “Swiss Cheese” system where individual companies will be able to choose what they want to cover, based on the religious beliefs of their owners, rather than the ACA’s promise of guaranteed levels of coverage for everyone, regardless of where you work.

Today’s question: What is your reaction to the Supreme Court’s Hobby Lobby decision?

Wednesday, June 18, 2014

No, not everyone agrees with you (or me)

Everyone I know agrees that President Obama’s problem is that he isn’t liberal enough.  Everyone I know believes that the problem with Obamacare is that it gives insurance companies too much power, when what we really need is a single payer system where the government runs everything, like Canada.  Everyone I know believes that  the answer to gun violence is to ban guns,  and if the Supreme Court won’t allow that, to at least license, regulate and restrict them. After all, no one I know would even think of owning a gun.”

“Everyone I know agrees that President Obama’s problem is that he is too liberal—heck, he’s probably a socialist.  Everyone I know believes that the problem with Obamacare is that it gives the government too much power, when what we really need is a free market system that gets government out of the way.  Everyone I know understands that banning or restricting guns won’t reduce injuries and deaths—guns don’t kill, people do. After all, everyone I know owns a gun, it is the way we’ve grown up, and every gun owner that I know is a law abiding citizen.”

I made up the above quotes, but they are representative of what I hear from many physicians (and others).  Earlier this week, I received an email from an ACP member who is very unhappy with how I graded the Affordable Care Act; his view is that Obamacare is a failure and, “this is the sentiment of 100% of the physicians that I meet.”  I have heard from liberal members of ACP who similarly claim that everyone they know wants strict gun control and a single payer system, and wonder why ACP doesn’t do more to speak for them.

And therein lays the problem: just because everyone we know agrees with us doesn’t mean our views are right or representative of how others think.  Surely, in a country as large and diverse as the United States, there is someone with a contrary perspective, informed by their own cultural influences, circumstances, gender, age, ethnicity and place of residence and life experiences. But we would never know it if we surround ourselves only with people who think the same way as us.  And if information about how others might think comes mainly from the vitriol and distortions of cable TV and talk radio and blast e-mails, well then, we’ll never really understand why others might hold opposing views.

Regrettably, a major, new survey of 10,000 adults by the Pew Research Center shows that more of us choose to be surrounded by people who think just like us, creating the greatest polarization in decades. “Republicans and Democrats” the researchers found, “are more divided along ideological lines – and partisan antipathy is deeper and more extensive – than at any point in the last two decades. These trends manifest themselves in myriad ways, both in politics and in everyday life…these divisions are greatest among those who are the most engaged and active in the political process.” 

One consequence is the “growing contempt” and “mutual antipathy” between Republicans and Democrats; “among all Democrats, 27% say the GOP is a threat to the well-being of the country. That figure is even higher among Republicans, 36% of whom think Democratic policies threaten the nation.”

It gets worse.  The researchers found that committed liberals and conservatives love to talk about politics but usually within their own ideological echo chambers. “For many, particularly on the right, those conversations may not include much in the way of opposing opinions.”

The growing polarization even carries over to where we choose to live.  “People on the right and left also are more likely to say it is important to them to live in a place where most people share their political views, though again, that desire is more widespread on the right (50%) than on the left (35%).”   Conservatives prefer to live in places where the houses are larger and farther apart but schools, stores and restaurants are several miles away; liberals where houses are smaller and closer to each other but schools, restaurants and stores are within walking distance.

There is a center—about 39% of the population—that does not hold consistently or mostly liberal or conservative views, but they are less likely to vote and participate in politics than the ideologues on the right and left.  “Most Americans in the center of the electorate think that Obama and Republican leaders should simply meet each other halfway in addressing the issues facing the nation” yet “an equitable deal is in the eye of the beholder, as both liberals and conservatives define the optimal political outcome as one in which their side gets more of what it wants.”

And, to be sure, while views have hardened on both ends of the political spectrum,  the “partisan antipathy is more pronounced among Republicans, especially consistently conservative Republicans. . . . Fully 66% of consistently conservative Republicans think the Democrats’ policies threaten the nation’s well-being. By comparison, half (50%) of consistently liberal Democrats say Republican policies jeopardize the nation’s well-being. Conservatives also exhibit more partisan behavior in their personal lives; they are the most likely to have friends and prefer communities of like-minded people.”

All of this bodes very poorly for the American system of governance.  Unlike parliamentary systems, where the majority party controls all the levers of government until they are voted out, the United States is founded on a system of  checks and balances as established by the U.S. Constitution.  Especially at a time when one party (Democrats) control the White House and Senate, and another party (Republicans) control the House of Representatives, the only way to advance legislation is through bipartisan compromise.  Yet committed ideologues don’t see compromise as a virtue.

I don’t have the answers, only a hope that at some point, the tide will turn and voters will choose to cast their votes for politicians who are committed to getting things done.  In the meantime, I see little prospect for achieving a consensus on changes that might be made in the Affordable Care Act, or to reach agreement on reforming entitlement programs or creating a fairer tax system. 

There are some things each of us can begin to do, though, on our own and together, to try to reduce polarization.  Support policy and advocacy organizations, like ACP,  that ensure that  the people who sit on their policy committees  represent the broad range of views, partisan leanings, and experiences of the membership.  For instance, the ACP committee that developed our new position paper on preventing injuries and deaths from firearms, which was published yesterday in the Annals of Internal Medicine, included physician gun owners from conservative communities and non-gun owner physicians who hailed from more liberal communities. They were able to openly share their perspectives, listen to each other, and reach a consensus informed by evidence. 

We can all try every day to listen to what the other side has to say; I personally follow people on Twitter who are from all across the political spectrum.

We can get out of our echo chambers and travel to  other parts of the country and meet people who have different experiences and views,  like I do when I travel to a dozen or more ACP chapter meetings each year. (Over the next several months, I will be attending chapter meetings in Bozeman, Montana; Pierre, South Dakota; Seattle, Washington; and San Francisco, California.) Sure, for me, listening to ACP members who have different views and political leanings, and being able and willing to consider a wide range of opinions from politicians, think tanks, and advocacy organizations across the spectrum of right to left, is built into my job description.  But even if it wasn’t, I have an inherent curiosity about how others view things and the circumstance that inform their views.

And finally, we all need to constantly remind ourselves that even if everyone we know thinks the same as we do (or at least we think they do), there are many other Americans who have a different view that also needs to be considered and respected.

Today’s questions: Are you concerned about the greater polarization found by the Pew researchers as more of us surround ourselves with people who think just like ourselves? What can or should be done about it?

Tuesday, June 10, 2014

Being Part of the Solution (continued)

My last blog post argued that physicians who participate in the public policy and advocacy activities of ACP (or for that matter, other professional advocacy organizations like the AMA, Alliance for Academic Medicine, subspecialty societies, SGIM, state medical societies et al) are part of the solution to what ails American medicine, while those who criticize from the sidelines are part of the problem. One comment on the post, from ACP member John O'Neill, stated the case for engaging in ACP policy and advocacy far more eloquently than I did. This is what he said, in its entirety:

"You are either part of the solution of part of the problem"

Which on are you?

It is easy to fall into negativism (some would say realism). It has happened to me many times. As a mostly office-based general internist, I have daily opportunity to listen to the perspectives of my patients who are from all walks of life. Some are more negative than others, but one thing's for sure, all vocations have negative aspects (and positive). How we perceive our profession, and the way we communicate this to others, is a matter of personal philosophy and style.

As long as there have been humans who suffer with injury or illness, there have been healers, and there always will be. Those of us in the USA who signed up for internal medicine as a specialty had a sense of what we were getting into, and nobody said it was going to be easy. Some of us thought that it was the optimal way to be a healer.

Despite the fact that, since I entered practice in 1990, reimbursement has been relatively flat, practice expenses have skyrocketed, hassle factor has multiplied, medical liability milieu ever more hostile and expensive, respect as "PCP" has eroded, my patients still come to see me every day and ask me to listen to their stories, solve their suffering, and try to keep them healthy. Many of the complaints are mundane or difficult to solve, but the work remains fascinating, challenging, ans yes, at times exhausting. There are days I feel demoralized, and there are days I feel blessed. So far, the latter is winning.

Am I adequately reimbursed for my training and efforts? No, but I have been able to find some ways around that. I don't make anything close to that "avg PCP salary" (would love to), but that was never really the priority. I try to remember that it is truly a privilege to have the opportunity to do what I do.

So, who's going to improve our lot? If we wait for private insurers or big pharma or government, we'll be waiting forever. Yes, I'm fairly certain that the future of our profession is in our own hands. We need physician vision, ideas, dialogue, courage and hard work. We will need the help of government, so we go to that table often. We need the advocacy of physician member organizations like ACP that organize and focus our efforts on the national front, on our behalf and that of our patients.

If my patients asked Bob's question, I'll have to say I'd like to be part of the solution.

John O'Neill, D.O., FACP, member, Medical Practice and Quality Committee, ACP

Today's question: if your patients asked the same, what would you have to say?