Box Turtle Bulletin

My Concerns about the Public Option

On Saturday, the US House of Representatives voted for the Affordable Health Care for America Act, a healthcare reform bill which has been the highest priority of the Democratic Party leadership since the party took control of the presidency and both houses of the legislature. There are a number of very positive inclusions in that bill, including some that deal specifically with the GLBT community.

Probably the most specifically significant to our community is the incorporation of the McDermott/Ros-Lehtinen bill to remove the special ‘gay couples tax\’ on spousal benefits provided by an employer. Currently, heterosexual spousal benefits are provided tax free and employers may claim them as an operating expense, but same-sex spousal benefits are considered to be part of the employee’s taxable income. This can result in thousands of dollars of tax demanded from our government solely because the spouse of the taxpayer is the same sex. Removing this tax is a tremendous relief on gay taxpayers.

Also included are changes in treatment for HIV patients, heath data collection related to the LGBT community, new sex education rules, and non-discrimination language.

However, the bill, as passed by the House, also provides for a “public option”, or insurance provision by the federal government. This government run health care mechanism is by far the most controversial aspect of the bill. And, depending on where you fall on the right/left scale, you may well have strong arguments either for or against such a move.

But while I have opinions in general about the decision on the part of the government to compete in the world of service provision, that is not the point of this commentary. Rather, I wish to express specific concerns about how this effort may impact our community negatively.

First, I preface with an assumption that while the public option is being discussed almost as though it is a supplement to current insurance coverage, it is likely to be an immediately significant player in the healthcare world. Additionally, based on the current provisions in the law, I cannot see how it will not over time become more, rather than less, influential.

And, based on my understanding of government and its current track record, that gives me concern. Here are the specific reasons why:

Federal Privilege

The federal government does not apply to itself the rules that it readily applies to citizens or private industry. Although it may seem unfathomable that lawmakers would specifically exempt themselves from the burdens they place on you and me, this is quite often the case.

And the federal government does not fall subject to state laws in regards to employment and non-discrimination. So exceptions made for the federal competitor would be exempt from state law requirements.

Let me give you a real life example of how the federal government, even in the way it reacts with private industry, exempts its rules from state overview.

Currently, companies in states like California are required to offer to their gay employees the same benefits they offer to straight employees. However, due to federal ERISA rules, most big companies do so entirely at their own discretion.

Morrison and Foerster explains:

The May 15, 2008, California Supreme Court decision held that same-sex spouses must be treated the same as opposite-sex spouses for all purposes under California law. This applies to employers with California employees to the extent that California law applies generally to them. However, the majority of employee benefit programs maintained by non-governmental employers are governed by ERISA. ERISA broadly preempts state attempts to regulate the operation of employee benefits, and as a result, it does not appear that state law could require employers to modify their benefit plans to provide additional rights or benefits to married same-sex couples.

While Congress seems seldom reluctant to direct the actions of private business, it sees restrictions on the “people\’s business” to be contrary to the best interest of the citizenry. That attitude is unlikely to change any time soon.

Federal Tax Dollars and Controversy

The healthcare reform bill passed with a very small margin. And essential to its passage was an amendment banning the use of federal dollars to pay for abortion services. Whether or not one approves of abortion, this vote tells us something important about the way in which the Public Option will be administered. The provision of controversial services will be subject to the political whims of whoever is in majority.

Issues such as abortion, contraception, in-vitro fertilization, sexual health information, HIV and AIDS care, HPV vaccination, and a host of other issues that are deemed “controversial” will be decided based not on medical need or even on what is best from a long-term health care perspective, but rather on political ideology.

More conservative lawmakers will, with conviction and determination, argue that it is unfair and un-American to tax the citizens in order to pay for things which they find abhorrent. Such as health services that reward sinners for their abominable behaviors.

Government Lag

When it comes to the provision of equality and decency to gay and lesbian employees, the private sector far outpaces the federal government. Currently, HRC has found that 99% of the employers they review provide employment protections on the basis of sexual orientation. The federal government does not.

The President has some leeway with which to assert protections for gay employees, but those change with each administration. And they do not apply broadly across all areas of the government.

In fact, in some areas of government – most particularly the military – private contractors, such as Halliburton, doing jobs identical to federal employees have orientation based protections against discrimination where their government counterparts may have official policies requiring discrimination. It is accurate to say that the only significant employer in the country with an anti-gay employment policy is the federal government.

And with poll after poll showing that large majorities of Americans support non-discrimination laws and open service in the Military, it is difficult to see the federal government on the forefront of protecting civil rights. When the voters in Kalamazoo, MI, have endorsed employment protections before the federal government, you know that there is a very significant lag.

Republican Antipathy and Democratic Apathy

There are segments within the Republican Party that, as a matter of policy, oppose any and all efforts to treat gay citizens equal to heterosexual citizens. And these segments have been so successful in their anti-gay efforts that they have made antipathy to our concerns a “Republican value”.

It is considered “pro-family” to actively seek out ways in which to discriminate against gay citizens and to make our lives difficult. These are not limited to “protecting the definition of marriage”, but often extend to bans on adoption, exclusion from public view such as public library offerings, and pretty much anything else they can think of.

Far too often, the unspoken answer that elected Republicans give to, “You are hurting my life”, seems to be, “Yes, that\’s what I am intending to do.”

And while we can count on opposition from Republicans, we cannot count on the Democratic Party to come to our defense.

Recent actions taken by the party clearly illustrate to us that the Democratic Party leadership sees us as a secondary priority. Our equality will be considered only when it is convenient, incidental, and comes with no cost of political capital.

So we are a people at the mercy of the whims of political expediency. Within the federal government structure, our rights are frequently bargaining chips to be used in the negotiation of benefits for the real priorities of politicians and lobbyists.

So What Can We Expect?

Should the Senate go along with the establishment of a Public Option:

• A large segment of the healthcare industry will be moved outside of state and local protections. While Kaiser or Blue Cross may be subject to state law which disallows discrimination in employment, the Public Option likely will be exempt. Further, such spousal benefits as may be provided by private insurance companies will not be provided to the employees of the Public Option in accordance with DOMA.
• There is a good chance that the pro-gay provisions in the House bill will be removed during reconciliation with the Senate version of the bill.
• It is likely that Republicans may regain control of one of the houses of Congress in 2010. If not, it is almost a foregone conclusion that the House will have a majority of members, both Republican and Democrat, who are socially conservative and unlikely to support gay rights. If Republicans gain control, one item high on the agenda will be revision to this healthcare reform. It is reasonable to assume that anti-gay provisions will be proposed.
• Future exclusions from health care provisions are likely to include limitations if not and outright ban on “federal tax dollars” spent on (i.e. the Public Option providing healthcare for):

  HPV vaccination for boys
  Gay specific preventative health care
  Sexual health programs which include mention of same-sex health
  Health data collection for the LGBT community
  Policies which include same-sex spouses/partners in health decisions

• And I do not think it beyond possibility that an administration of someone like Mike Huckabee would be pro-active in “preventing the spread of HIV” or in denying services to someone they deem to have “taken deliberate risks”. And should some new “gay plague” come down the road, I am not confident that any administration would not respond with punishment before care.

I hope that my concerns are overblown. I hope that I am just being reactionary. I hope that the federal government will not seek under any administration to advance conservative social policy by means of meddling in the health provisions of a significant segment of the population.

But in the midst of the euphoria that much of our community is expressing over the Public Option provision of healthcare reform, I hope that we can consider the possibilities that can arise and recognize the risks that are inherent in a federal government run health company.