Why Christian employers should oppose the HOPE with Fertility Act

Legislation is being considered in Congress that would significantly increase employers’ health care costs. The HOPE with Fertility Services Act, drafted by Senator Cory Booker (D-NJ), would require all health plans regulated by the federal law governing most employer-sponsored insurance (ERISA) to provide coverage for in vitro fertilization (IVF). The majority of American workers are covered by ERISA plans.

IVF most often includes killing fertilized human eggs that would otherwise grow to adulthood. This bill requires insurance coverage not only for infertile male-female couples, but it could even be interpreted to apply to same-sex couples or transgender-identifying employees who are “incapable of reproduction to live birth based on medical or reproductive history, age, physical findings, or diagnostic testing.” Further, the bill’s ambiguity would easily allow an interpretation that coverage is even required for medical/IVF costs associated with surrogacy, including commercial surrogacy.

All employers, but especially Christian employers, should be very, very afraid.

Let’s start with the cost. Employers cannot afford another costly mandate on insurance. Each cycle of IVF costs tens of thousands of dollars, and most women require multiple cycles. Health care costs are already eating our economy. As reported by the Kaiser Family Foundation, one in four employers report that they plan to raise employee’s premium contributions in the next year due to mounting health care costs. Premiums for family coverage in the employer-sponsored market have more than quadrupled in the past 24 years, from just under $6,000 in 1999 to $24,000 in 2023. ERISA regulates the plan for 65% of workers with employer coverage. Half of all Americans are covered by employer-sponsored plans. The percentage of small employers (under 200 employees) that have moved into the ERISA market in the past five years has more than doubled, now almost half of all such companies (45%).

Along with the price tag, the bill also comes with an authoritarian reporting regime, which more often than not indicates the government is getting too big for its britches. Every ERISA-regulated health plan, no matter how small, would have to submit a detailed annual report to the government documenting how it is fully compliant. The Secretary is required to name names to Congress of every employer — compliant or non-compliant — and justify why each employer’s report is deemed compliant or non-compliant. 

The intimidating power of the Secretary to “name and shame” employers deemed insufficiently compliant will lead to discrimination against the sickest. As some employers will fear being deemed noncompliant, they will no doubt overcompensate by providing far greater coverage of IVF than they do for more medically necessary treatments for sicker patients with life-threatening conditions, such as cancer, rare pediatric genetic disorders, and other conditions. The crushing costs of this overcompensation for expensive IVF procedures will be shifted to employees who are the sickest — increasing their deductibles and coinsurance for life-saving treatments.

ERISA has long been a refuge for employers from the burdensome ACA and state-based mandates on insurance that drive up costs. ERISA-regulated plans offer attractive coupling of the potential for lower costs and flexible plan designs with fewer regulatory burdens. In the past, ERISA plans were offered only by the largest employers. Now, thanks to changes in the reinsurance market, smaller groups — even as small as 40 or 50 employees — have been able to offer an ERISA-regulated plan. Many employers are using ERISA’s flexibility to implement cost-containing measures and innovative plan designs like waiving deductibles for high-quality health care and incorporating Direct Primary Care into the plan. Costly mandates on the ERISA market would shut the door on this refuge.

Further, the bill threatens to increase the costs of IVF for everyone. When the government makes your employer buy you a service, the cost of that service skyrockets, as we saw so painfully in the decade following the enactment of the ACA employer mandate. IVF operates largely in the competitive cash economy in health care — since most people are paying out of pocket for most or all of their IVF services. As soon as the procedure is mandated by the government, IVF clinics will jack up their rates, thanks to the market distortions caused by the third-party payer system that shields consumers of health care from their true costs.

The bill naturally raises conscience objections for employers and employees who have religious or moral objections to the controversial aspects of the IVF industry, such as discarded or indefinitely frozen embryos and commercial surrogacy. If enacted, the bill would induce litigation similar to the Hobby Lobby case, where the U.S. Supreme Court found that the ACA preventive services mandate impermissibly violated the religious liberty of faith-based employers. The Booker bill, if introduced and enacted, could very well meet the same fate.

Christian employers recognize that financial stewardship is a critical obligation of their faith. They may elect, as other religious businesses have, to support their employees in their choice to join a Health Care Sharing Ministry instead of paying into an insurance pool that funds IVF, transgender surgeries and abortion.  

While compassion for infertile couples longing for a child is understandable, this costly, burdensome, and potentially unconstitutional government-imposed insurance mandate would hurt far more people than it helps.