Hobby Lobby and the Law of Unintended Consequences

by LeClairRyan


The migration described in part one of this post, away from the strict responsibility of large employers for managing the terms and scope of the health insurance offerings made to employees, will also start us down the road toward rationalizing decisions about the scope of coverage and the scope of care.  Another unintended consequence of the Court’s decision in Burwell vs. Hobby Lobby may be a closer examination of the costly standard of care that is perpetuated by the employer provided health insurance model.  It is well recognized by healthcare economists (and business executives who are responsible for creating health insurance offerings for large employer groups) that a significant driver of the increasing cost of the health insurance budget for the nation is the pace of technological improvement that has, out of necessity, raised the standard of care (the minimum acceptable scope and quality of services provided by doctors and other allied health professionals) as well as increased the operating costs borne by hospitals and other provider organizations, that are necessary to meet the ever expanding and rising standard of care.

A case in point is the introduction of digital mammography for the diagnosis of breast cancer in to our healthcare delivery system and economy.  While it is beyond dispute that digital mammography equipment provides a higher resolution and more detailed examination of a patient’s breast tissue, it is similarly beyond dispute that the cost of that equipment is as much as 50% more expensive than mammography equipment that uses traditional film technology.  Using this one example, it is easy to see how the availability of improved technology creates an obligation on the part of healthcare providers to purchase and utilize that technology, which invariably increases the global cost of care for all Americans. As individuals we all want the best, most technologically advance care available. Who wouldn’t? The challenge we face as a society, our ethical dilemma, is identifying an appropriate decision-making process for making increasing complex cost-benefit choices.

medical_technologyAs with coverage decisions about certain types of contraception, as highlighted in the Hobby Lobby decision of the Supreme Court, the deployment of advanced technology, including more expensive means of conducting mammographic examination to detect breast cancer, is a decision that is made without any input or participation by individual insured parties.  As a result, we all bear an increased cost of care to each insured individual without any of our consent or input.

What we see emerging from many corners of the healthcare delivery system is a fundamental disconnect between the clinical innovation the healthcare delivery system is able to provide, and how much of that benefit private individuals are willing or able to afford.  As the changes brought about by the Affordable Care Act bring ever increasing numbers of individuals into the healthcare delivery system we will surely see an increase in pressure on insurers and providers to more directly interact with the patients receiving care, to allow them to play an active role in determining the quantity and quality of healthcare services they choose to purchase.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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