Restoring the Parameters of Public Health in a Time of Hobby Lobby and Ebola: The Case for a Wellness Account

Abstract

The genesis of this piece lies in two seemingly unrelated events in law and public health, the governmental response to the Ebola crisis, and the U.S. Supreme Court ruling in Burwell v. Hobby Lobby, sparked by religious objections to certain employer mandates under the Affordable Care Act. While this essay focuses on the Burwell v. Hobby Lobby case and not Ebola, its core premise is that health policy is best served when government authorities focus strategies and responses within the parameters of individual and population concern. This piece will propose an alternative approach to women’s health promotion, a wellness account, which carves out employers from coverage decisions in the prevention area. Not only will the wellness account circumvent corporate paternalism in health, it will strengthen the promotion and prevention goals of the Affordable Care Act (“ACA”) by more effectively engaging individuals and clinicians in their own health decisions, as well as provide coverage options that include a broader array of health services not routinely available under the law. The essay will be divided into four sections. Section 1 will review the U. S. Supreme Court decision in Burwell v. Hobby Lobby, highlighting the core findings of the majority, as well as key points made by the minority. Section 2 will present some general reflections on the Hobby Lobby case, focusing on the free exercise of religion issue under RFRA, as well as an exploration of the compelling interest standard as it relates to women’s health. Section 3 of the article will explore possible avenues around the legal barriers of Hobby Lobby through legislative and judicial fixes, as well as alternative approach to the employer mandate. In Section 4 a proposal will be posited to amend the ACA to create a lockbox for prevention and wellness services that will provide a new home for women’s health services including the four contraceptives that sparked the Hobby Lobby litigation. It will be argued that removal of the coverage mandate from employer discretion is a way to restore the parameters of public health to matters of science, public need and individual patient right.

Keywords: Affordable Care Act, Burwell v. Hobby Lobby, health policy, contraception