During the Supreme Court’s discussion this week on the contraceptive mandate and its implications for the free exercise of religion for Americans, Justices Sonia Sotomayer and Elena Kagan offered up a simple solution for Hobby Lobby based on the mechanics of the Affordable Care Act.
“But isn’t there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than — than the cost of health insurance at all? Those employers could choose not to give health insurance and pay not that high a penalty – not that high a tax,” Sotomayor said.
Clement responds “Well, just to put this in concrete terms, for Hobby Lobby, for example, the choice is between paying a $500 — a $475 million per year penalty and paying a $26 million per year coverage.”
At this point Kagan goes on to advocate Hobby Lobby drop health insurance completely and pay a penalty per employee.
“No, I don’t think that that’s the same thing, Mr. Clement,” Kagan said. “There’s one penalty that is if the employer continues to provide health insurance without this part of the coverage, but Hobby Lobby could choose not to provide health insurance at all. And in that case Hobby Lobby would pay $2,000 per employee, which is less than Hobby Lobby probably pays to provide insurance to its employees. So there is a choice here. It’s not even a penalty by – in the language of the statute. It’s a payment or a tax. There’s a choice.”
There’s a perverse incentive of penalties that cost more if you provide insurance that covers everything except four abortifacients as opposed to providing no insurance at all. But standing back from the specifics, the argument sounds very familiar.
You’re likely familiar with the concept of a poll tax. It’s a tax deployed under the Jim Crow laws that was levied per person in many states after the Fifteenth Amendment extended the right to vote to all races. Wikipedia notes these laws often “included a grandfather clause, which allowed any adult male whose father or grandfather had voted in a specific year prior to the abolition of slavery to vote without paying the tax. These laws, along with unfairly implemented literacy tests and extra-legal intimidation, achieved the desired effect of disenfranchising African-American and Native American voters, as well as poor whites.”
What does that have to do with the contraception mandate? Well, Secretary Sebelius “has already exempted” 190 million people from the contraception mandate, either because they work for non-profit corporations or because their plans were “grandfathered” when Obamacare became effective.” In effect, the government is now making the case that they have the power to mandate a tax based upon the free exercise of First Amendment rights, despite there being no evident compelling interest for the government to mandate free birth control (or in this case access to the four abortifacients that Hobby Lobby has declined to cover).
When you weigh the importance of retaining the ability of a significant portion of faithful Americans to participate in the public square in accordance with their religious views against the importance of “free” abortifacients for the persistence of a free society, one hopes most sane people would realize that preserving religious liberty may rank a bit higher. There is no access issue here: abortifacients like Plan B are now available over the counter. The poorly written birth control mandate has not even clarified exactly what qualifies as deserving of this special free status. Justices even inquired, based on the case the government made, whether outright abortions could be included in the mandate — to which the government attorney responded there was no law yet mandating that coverage. Yet.
This debate comes down to who must pay for an elective treatment that some find morally objectionable — and whether, despite that objection, people should be compelled by the force of law to cover the cost. In this case, that hardly stands up to the scrutiny of a compelling public interest. Hobby Lobby has not been noted for having retention problems in the past: They pay well, and the Medical treatments that their workers utilize are covered by the insurance policies Hobby Lobby offers. But the wellbeing of Hobby Lobby’s employees is considered insignificant by Justices Kagan and Sotomayor — to such a degree that they would recommend Hobby Lobby pay a penalty to the government in exchange for no service provided, and eliminate health care policies for their staff, simply to exercise their First Amendment rights as citizens.
As part of their briefing, Hobby Lobby’s representatives stated they provide health insurance for its employees as part of their compensation package out of their belief that it’s the right thing. The owners of Hobby Lobby have said they would close their doors if they are forced to violate their conscience. But rather than recognize that this may be an area where the government has overstepped its rightful place, Sotomayor and Kagan think the just solution is the elimination of all Hobby Lobby employees’ health insurance plans.
Is the world a better place without a thriving company that closes every Sunday, starts all employees at a salary above minimum wage, and from all reports hasn’t compelled anyone to work there — or is it preferable that abortifacients are protected from criticism — that they not even come with a co-pay, and that other Americans are responsible for paying for someone’s choice?
The Affordable Care Act’s poll tax demands that you pay up in order to exercise your First Amendment rights, unless you’re one of the 190 million exempted. One wonders if Justice Sotomayor and Kagan would bring the same legal consistency to bear when reviewing any other tax that was implemented as a fee for allowing Americans to exercise their rights. Surely they can’t be ranking political considerations higher than the law — that would never happen in a Republic. Or would it?
Welcome to a world where if you like your rights, you can keep your rights… for a fee.
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