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Jack Ohman | Sacramento Bee

Complicated, crowded decisions

Justices clarify distance between doctor, patient

Last week, the Supreme Court ruled that Hobby Lobby, as a for-profit company owned by a small number of people, should not be required to provide contraceptive coverage as part of its employee insurance. The majority ruled that a less intrusive mechanism was available: offer them the same waiver offered to religiously affiliated non-profits.

People on the right and the left have been quick to predict the contentious ruling’s long-term effects. As usual, these predictions have tended to the extreme. But the real loser in this case, and in general in the United States these days, has been patients and their physicians.

One of the interesting refrains of refusal from those who disagree with the Hobby Lobby ruling: Hobby Lobby (or the boss or the company) shouldn’t decide about contraception; that should be left to a woman and her doctor. But that’s the joke of it all.

If they ever were, health care decisions haven’t been left to a woman and her physician (or a man and his physician) for a long time. Among others, the patient’s employer, the insurance company, the physician’s employer and the federal government all get involved in these decisions.

The patient’s employer determines the kinds of plans they will offer their employees. The Affordable Care Act limits the range of these plans, but there can still be quite a bit of variability. When the plan only requires a copay, patients will treat physician recommendations very differently than when the plan has a high deductible.

The insurance company, in conjunction with the patient’s employer, is also involved. If the insurance company offers plans that cover one drug at full cost, but they only pay for half of another, that changes the calculus of the decision.

The employer of the physician can also get involved. According to a recent lawsuit, Health Management Associates pushed emergency room physicians working at their hospitals to admit a certain percentage of patients older than 65, regardless of the patient’s medical condition or need.

Finally, the federal government and state governments are involved – the FDA only approves some medications for use. For example, the FDA has not approved medicinal marijuana, but some states have legalized it anyway. In Indiana, only the most foolhardy of physicians would work to get you some. Finally, and here’s the irony of it, even if the Supreme Court had ruled against Hobby Lobby, the covered contraceptives would have been limited to the 20 or so on the FDA’s approved list.

The Supreme Court ruling in the Hobby Lobby case doesn’t really change this dynamic in any fundamental way. What the Supreme Court decided was that in the case of religious beliefs about contraception, insofar as employers play a role in health care decision-making, the employer can restrict the contraceptive choices available to their female employees. And if the federal government wants to offer those contraceptive choices independently, it can try to.

To put it a slightly different way, the federal government and some businesses were disagreeing about how your health care decisions should be handled, and the Supreme Court settled the dispute. Among other things, the Supreme Court’s decision referenced religious freedom, corporate personhood, individual vs. corporate interests, and the warrant for government intrusion when discussing a woman’s decision to get (covered) contraception. To me, this demonstrates that the structure of our insurance scheme in the U.S. continues to run off the rails.

We may never get (back) to the point that decisions are left to patients and their physicians, but maybe we can make the process a little less crowded.

Abraham Schwab is a medical ethicist and assistant professor of philosophy at IPFW. He wrote this for The Journal Gazette.