The Court of Justice of the European Union (CJEU) yesterday delivered the Judgment (press release) on a request of the Supreme Court of Latvia on whether domestic authorities are obliged to reimburse costs of cross-border medical treatment when the patient's decision to perform it in another European country was based on religious, not medical, grounds. The Opinion of Advocate General (summarized here) is helpful in understanding the case.
The son of the applicant in the main proceedings had to have open heart surgery. That operation was available in the latter’s Member State of affiliation, Latvia, but could not be carried out without a blood transfusion. However, the applicant in the main proceedings opposed that method of treatment on the ground that he was a Jehovah’s Witness, and therefore requested that the Nacionālais veselības dienests (the national health service, Latvia) issue an authorisation so that his son could receive scheduled treatment in Poland, where the operation could be performed without a blood transfusion. As his request was rejected, the applicant brought an action against the health service’s refusal decision. That action was dismissed at first instance, a ruling which was upheld on appeal. In the meantime, the applicant’s son had heart surgery in Poland, without a blood transfusion.
It should be noted that there are two reimbursement schemes under the EU law, established by Regulation 883/2004 and Directive 2011/24. The former one obliges Member States to fully reimburse costs of cross-border healthcare, while under the latter one the costs are reimbursed "up to the level of costs that would have been assumed by that Member State, had that healthcare been provided in its territory, without exceeding the actual costs of healthcare received."
By virtue of Article 20(2) of Regulation No 883/2004, the Member State of affiliation must bear the costs of that healthcare in the Member State of treatment, whereas in the case of Articles 7 and 8 of Directive 2011/24, the obligations of the Member State of affiliation are simply to discharge the costs which its public health system would have had to bear anyway had the treatment been carried out in that Member State.
Taking this difference into account, the Court has ruled that domestic authorities aren't obliged to fully reimburse costs of cross-border medical treatment under (more generous) Regulation 883/2004 "where hospital care, the medical effectiveness of which is not contested, is available in that Member State, although the method of treatment used is contrary to that person’s religious beliefs," but can't refuse (likely partial) reimbursement under Directive 2011/24 in such circumstances, "unless that refusal is objectively justified by a legitimate aim relating to maintaining treatment capacity or medical competence, and is an appropriate and necessary means of achieving that aim"
It's noteworthy that the applicant was represented before the CJEU by, among others, prominent JW lawyers Shane Brady and Petr Muzny.
Also, this case may be compared with the landmark Stinemetz case, widely cited in support of state RFRAs and overruling Smith v Employment Division.
Mary Stinemetz was a Medicaid patient in need of a liver transplant. She was also a Jehovah’s Witness, who objected to the blood transfusion that an ordinary liver transplant would require. With technology’s advance, however, has come a newfangled medical procedure called a bloodless liver transplant, which does not involve a blood transfusion and which is actually cheaper than an ordinary liver transplant. But Kansas had no facility capable of doing bloodless liver transplants. The nearest one was in Omaha, in Nebraska.
Unfortunately for Stinemetz, Kansas’s Medicaid had a general policy against reimbursing out-of-state procedures, and it refused to make any exception for her. If that refusal seems hard to understand, the Kansas Court of Appeals felt the same way. The court concluded that Kansas’s Medicaid agency had “failed to suggest any state interest, much less a compelling interest, for denying Stinemetz’s request.” Stinemetz ultimately won this case. Struck by its facts, the Kansas Court of Appeals construed the religious freedom provision in the Kansas state constitution to incorporate RFRA’s compelling-interest standard.
This story, however, does not end happily. By the time litigation ended, Stinemetz’s problems had progressed to the point that she was no longer eligible for a transplant. She died of liver failure the year after her victory in the Kansas Court of Appeals. This does not necessarily imply that Stinemetz died for want of a religious exemption. There may have been other obstacles to Stinemetz actually getting a liver transplant, and there is no guarantee the transplant would have gone successfully. All we can say is that, had Kansas offered her a religious exemption from the beginning, Stinemetz would have had a better chance.
https://digital.sandiego.edu/cgi/viewcontent.cgi?article=1089&context=sdlr