Ramesh contends that the ACA violates “our statutory right to act on our religious beliefs”:
Up until 2012, no federal law or regulation required employers to cover contraception (or drugs that may cause abortion, which one of the cases involves). If 2011 was marked by a widespread crisis of employers’ imposing their views on contraception on employees, nobody talked about it.
What’s actually new here is the Obama administration’s 2012 regulation requiring almost all employers to cover contraception, sterilization and drugs that may cause abortion. It issued that regulation under authority given in the Obamacare legislation. The regulation runs afoul of the Religious Freedom Restoration Act, a Clinton-era law. That act says that the government may impose a substantial burden on the exercise of religious belief only if it’s the least restrictive way to advance a compelling governmental interest. The act further says that no later law should be read to trump this protection unless it explicitly says it’s doing that. The Affordable Care Act has no such language.
Amy Davidson has argued against that line of thought:
Hobby Lobby is arguing that it counts as a person whose religious expression, according to the Religious Freedom Restoration Act of 1993, shouldn’t be “substantially burdened” by a law unless there is a “compelling government interest.” (Adam Liptak has written about how this draws on the dubious logic of Citizens United.) But the burden of complying is missing and the compelling interest is clear. The owners of Hobby Lobby aren’t the ones taking Plan B.
The government, in a reply to the company’s SCOTUS filing, quoted the opinion of a judge who, writing about a related case, said that the mandate would not “encourage (the corporations’) employees to use contraceptives any more directly than they do by authorizing (the corporations) to pay wages.” The government, meanwhile, heavily underwrites the entire employer-insurance system through its tax treatment of the money that companies spend on health care. (As my colleague John Cassidy argues, a lot of this would be simpler if Obamacare had been more radical, introducing a single-payer system.) The government also has an interest in women being healthy and having fair access to the care they need.
Scott Lemieux joins the conversation:
One argument that has been made again and again by supporters of the legal challenges is that the religious consciences of employers are being burdened so that employees can get “free” contraception. But this is an erroneous argument that misapprehends the basic concept of employer-provided health insurance. Contraception provided by health insurance isn’t “free,” it’s earned. Companies get substantial taxpayer subsidies for partly paying employees in health insurance instead of cash. In exchange, this insurance has to be comprehensive enough to provide value to the employee. Women getting basic health-care needs covered by insurance they’re receiving as compensation are not receiving any kind of free ride.
This point underscores just how weak the legal challenge to the mandate is. The employers in question are claiming that there’s a major religious freedom issue at stake depending on whether employees obtain contraception through direct wages or through the insurance employers get tax benefits for paying employees with instead. But there isn’t. The “burden” imposed by the mandate is utterly trivial, and the argument that it violates RFRA should be rejected by the Supreme Court.
Meanwhile, Edward Zelinsky believes “this entire controversy is unnecessary”:
The tax law contains devices for reconciling the religious concerns of employers like Hobby Lobby with the policy of expanding medical coverage: health savings accounts (HSAs) and health reimbursement arrangements (HRAs). The current regulatory exemption from the contraception mandate should be amended to include for-profit employers and to exempt from the federal contraception mandate employers (both non-profit and profit-making) who maintain HSAs or HRAs for their respective employees. Compromise along these lines would respect the genuinely held views of religious minorities while implementing the federal policy of broadening access to health care.
Previous Dish on the court case here.
The Dish 