Religious discrimination in insurance

[Volokh, Eugene]

        Alan raises an interesting point (as usual), but I wonder how we can
know what Jehovah's Witnesses' aggregate medical costs are.  I doubt that
most medical studies ask people for their religion; I believe a few studies
do intentionally focus on some groups with unusually healthy lifestyles --
Seventh Day Adventists, I'm told, are one such group -- but I think there
are only very few such.  I suppose such a study would be possible,
specifically focused on those people who get the transfusion-less
treatments; I'm just not sure that any such study has been done, or can
conveniently be done in a limited time-span.  The study should,
incidentally, control for those factors that insurance companies already use
to discriminate among policyholders; for instance, if Jehovah's Witnesses
don't smoke, their insurance costs should be compared to the costs of other
nonsmokers, assuming that insurance companies draw this distinction (and
keeping in mind Alan Gunn's observations).

        But beyond this, I still don't think that this is a proper occasion
for legal intervention; as I mentioned, I doubt that existing law mandates
religious accommodation, and I don't believe it should be changed to do so.
I don't trust market processes perfectly -- but I trust them more than I
trust the government in deciding which groups and lifestyles are more or
less expensive for insurance companies.

        Finally, note that if Jehovah's Witnesses are considered entitled to
this accommodation, I do think it would be hard to draw the line as to other
requests.  Lots of people can sincerely -- or seemingly sincerely -- claim
lots of different religious objections.  Just as Sherbert the Sabbatarian
was followed by Thomas the pacifist, and doubtless by other kinds of
objectors in lots of cases that never made their way to the Supreme Court,
so there'll be quite a few other people who claim that more expensive
treatments are religiously required; consider, for instance, people whose
insurance covers psychiatric treatment and who claim that their religion
mandates a special kind of more expensive psychiatric counseling.  Each
group may be small enough that it'll be very hard to reliably determine
whether their "religiously motivated life style" causes them to be generally
less expensive for insurers.  But the aggregate of this process will
probably still be greater costs for other policyholders -- again, people not
just practicing their own religions, something that I'm glad to see them do,
but imposing the costs of their religions on others, and using the coercive
machinery of government to do so.

        Eugene

> -----Original Message-----
> From: A.E. Brownstein [SMTP:aebrownstein at UCDAVIS.EDU]
> Sent: Friday, January 25, 2002 10:16 AM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: Religious discrimination in insurance
>
> I don't know whether it is more expensive, but I wonder whether the
> expense
> issue should be focused on particular treatments or on overall costs. It
> may be that in the aggregate Jehovah's Witnesses, because of their
> religiously motivated life style, are likely to cost health insurance
> companies less in benefits than other policy holders. If the company and
> other policy holders are going to benefit from decreased costs resulting
> from religiously motivated life styles, it is hard to see why they should
> complain when certain treatments are more expensive because of a policy
> holder's religious beliefs.
>
> Alan Brownstein
> UC Davis
>
>
>
> At 06:38 PM 1/24/2002 -0800, you wrote:
>
> >         I'm just curious, not as a doctrinal matter (the question there
> > is whether insurance antidiscrimination laws have a "reasonable
> > accommodation" provision, and I doubt that they do) but as a policy
> > matter:  Is the bloodless surgery more expensive than normal surgery?
> >
> >         I for one wouldn't be wild about having to pay, as a
> > policyholder, for the extra cost occasioned by someone else's religious
> > beliefs, and I'd be reluctant to see the law impose such a burden.
> Query
> > whether such a law, incidentally, would be constitutional unless it had
> > some requirement that the religious care be not materially more
> expensive
> > (see Thornton v. Caldor).  I don't think such a requirement should be
> > unconstitutional, but I also don't think it would be right as a policy
> matter.
> >
> >         Eugene
> >-----Original Message-----  From:   Richards, Edward P.
> >[SMTP:RichardsE at UMKC.EDU]  Sent:   Thursday, January 24, 2002 6:15
> >PM  To:     RELIGIONLAW at listserv.ucla.edu  Subject:        Religious
> >discrimination in insurance
> >
> >Just had a question from a lawyer about an interesting health law case.
> A
> >Jehovah's Witness has commercial health insurance.  He needs surgery, but
> >the plan refuses to authorize care at a medical center that offers
> >bloodless surgery.  (There are well established but not widely available
> >techniques to reduce the chance of needing blood in surgery, which is
> >important if the patient has refused blood.)  The plans says it is
> >providing standard of care and does not need to accommodate the patient's
> >religious beliefs.  Since the plan's care is no care as far as the
> patient
> >is concerned, he has to pay for the bloodless procedure himself. Does
> this
> >raise any issues under the civil rights laws?
> >
> >Thanks!
> >
> >Ed
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