The Supreme Court has issued a narrow ruling in favor of Hobby Lobby, exempting them from the requirement to provide coverage of all FDA-approved contraceptives because of their religious objection.
Following oral arguments, I was not optimistic about this ruling. The Court could have bought into the argument that Hobby Lobby can’t really complain about this requirement when they have the capability to not offer coverage at all, instead shifting people under their employ to the taxpayer via Medicaid or the exchanges. The penalty for offering coverage which fails to meet essential benefits is clearly absurd and sizable, but the penalty for not offering coverage at all would actually cost them less than offering coverage in the first place (around $26 million per year). The “gun to your head” penalty was the one which moved the court on the Medicaid/federalism question before, in a ruling that unexpectedly led to half the states declining to expand Medicaid. Justices Kagan and Sotomayor stressed this in oral argument and the Court could have found that this factor removes the pressure of an actual requirement. You can understand the reasoning: Just like the requirement to purchase insurance, it’s not illegal, it’s just a tax!
Instead, the Court has issued a narrowly favorable ruling which, while protecting the religious liberty of corporations – and deeming corporate owners as persons under the Religious Freedom Restoration Act, since indeed they are – could have a very similar effect for the rest of us as a decision which found against Hobby Lobby while allowing them to push the cost for some contraceptives onto the rest of the populace. (There’s some lack of clarity as to whether this ruling applies only to ‘closely held’ corporations – that’s one where at least fifty percent of the entity is owned by five or fewer people; if so, over 90 percent of companies in America are closely held.) As I wrote in The Transom back in March: “The likeliest scenario is that Hobby Lobby’s unwillingness to pay for four forms of birth control – Plan B, Ella, and two IUDs – for their employees leads to all of us having to pay for them, instead, either through subsidies or through Medicaid.” And that’s what’s probably going to happen: instead of effectively a tax on employers, the contraception mandate will become a tax on all of us.
The decision reads in part:
The Government has failed to satisfy RFRA’s least- restrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion. The Government could, e.g., assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit [sic] employers with religious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests.
So because corporations with religious exemptions will not be required to provide coverage for all contraceptives – a requirement, if you recall, which was precipitated not by the passage of Obamacare but by bureaucratic fiat from HHS – all of us will have to take up the cause of payment instead. This position even undermines the argument advanced by The Little Sisters of the Poor and other non-profits who claim that the existing HHS accommodation for them still violates their conscience (for an alternate view on this, read Ed Whelan). The political drive will now shift to having all taxpayers pay for all forms of birth control, eliminating the middle man of the business or corporation.
There’s a wealth of existing precedent for this. Taxpayer dollars – and a not insignificant amount of them – are already going to pay directly for abortions and for birth control which prevents implantation of a living embryo (versus preventing formation of living embryo in the first place, which Hobby Lobby’s owners and other Christians are generally fine with). Americans are already paying for birth control via Medicaid and subsidizing it via Obamacare. And they’re doing the same for abortions, too.
While the Hyde Amendment prohibits federal funding of abortion except in cases of rape, incest, and life endangerment, state funding has no such prohibition. Medicaid is the primary payer for 41% of births nationwide, including 60% in New York City and 70% in Louisiana. It also pays for a sizable number of abortions. And this absolutely has an impact: the trendline for Medicaid funded abortions have only increased during the recession, and will only continue to increase under Obama’s Medicaid expansion. And funding has a dramatic impact—this survey of academic literature from Guttmacher notes: “Approximately one-fourth of women who would have Medicaid-funded abortions instead give birth when this funding is unavailable.”
States which currently fund abortions under their Medicaid programs for virtually any health related reason include: Alaska, Arizona, California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, New York, Oregon, Vermont, Washington, and West Virginia. By themselves, California and New York spend tens of millions of taxpayer dollars every year funding these non-rape/incest/life of the mother abortions – New York remains the abortion capital of America, per capita. There were 133,000 publicly funded abortions in just those two states in 2010, representing roughly 10% of total abortions in the country (taxpayers in those respective states paid for all of those). Christians who pay taxes in these states have their tax dollars used for this purpose already.
There has been all sorts of terrible reporting about this case from the beginning – a typical press release reacting to the decision from the left showed up in my inbox declaring “Your Boss’s Religion Trumps Your Health”, and that seems typical of the reporting on the issue. Here at The Federalist, we’ve run three separate pieces rebutting these idiotic ideas, but expect the narrow nature of this decision is absolutely going to lead to more.
This shoddy reporting obscures a more basic and important tension: Christians who are rendering unto Caesar in all of the above states and more are already subsidizing all sorts of life-destroying pills and implants, whether they like it or not. And thanks to the nature of the Hobby Lobby decision and the political priorities of the left, those with objections should prepare for subsidizing birth control, abortifacients, and abortion for even more people.
That’s one reason why the culture wars have only just begun. When the battleground shifts within a culture, moving from “my body, my choice” to a demand that others pay for and affirm those choices, the aggressors are incentivized to enshrine their perspective as broad mandatory policy, not just as a socially laudable practice. That’s why we’ve moved from a point where corporations providing benefits to employees was considered a good thing to a point where corporations which provide some benefits but not all must be made to suffer. You only pay for 16 out of 20 forms of birth control? Fascist.
Despite today’s decision, the left will continue to fight to mandate their preferred policy and force it on everyone, everywhere. The error they made here was in picking a battle that had a legally defensible position on the part of the individuals involved. Instead, they could’ve just used the sweeping authority of the purse to fund their preferences in aggregate – and if the arena of taxpayer-funded services is any guide, that is how they will ultimately prevail.
Subscribe to Ben’s daily newsletter, The Transom.