If you are looking for an overblown reaction to the Hobby Lobby case, you won’t find it in this article. The decision in Hobby Lobby, while disappointing, was not unexpected. In fact, this exact decision was predicted by former ACLU President Nadine Strossen in my special interview with her last week. Am I disappointed? Yes. Am I caught off guard? No. Am I going to post an article where I’m “flipping out” like some people are doing? No. My style is to break down the law and give you the facts while staying cool, calm, and collected.
First, I absolutely agree with the dissent. However, while the decision is bad, it’s not catastrophic. I actually think the other decision, Harris v. Quinn, is worse (more on that later). Further, I get that people are raw about the Hobby Lobby decision – I’m raw too. But, I won’t stoop to the level of those that perpetuate mass hysteria by writing hyperbolic headlines and distorting the facts or the law just to make a buck.
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The Court ruled that: 1) The government could find a way to provide coverage; 2) It would likely reject broad religious claims in future cases; and, 3) The ruling only applies to closely held corporations, not publicly traded ones. I loved Rachel Maddow’s simplistic explanation last night on MSNBC:
“At the Supreme Court, the 5 conservative Justices in the Court’s majority today, ruled that some companies are exempt from one of the regulations about health insurance in Obamacare. It’s kind of a weird ruling because the Justices in the majority, they went out of their way to say that your religious objections can only get you out of one part of this one law. They said specifically only contraception laws are subject to religious beliefs, other laws aren’t. So if you are lucky enough to be employed at a company where 5 or fewer people hold at least 50% of the stock in the company and those people have religious beliefs about what kind of contraception you should be using, well your boss is the one who gets to decide what kind of contraception you can have, regardless of what you think, or your doctor thinks is best for you. And that kind of religious belief exception to the law ONLY applies when it’s contraception.”
It’s far from ideal. But, imagine if the Court had ruled broadly that all laws are subject to religious beliefs? What’s scary about this decision isn’t the decision itself, it’s all of the questions the Court didn’t answer.
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If you are going to pass a law that makes all businesses over 50 people provide insurance to their employees – like the ACA does – then you are going to have to deal with their religious objections to parts of that law. I’ve long been an advocate of getting rid of the employer based insurance system in favor of a single payer system. Many would certainly not be in favor of that, but it would solve the problem of religious objections. Furthermore, the Court’s decision yesterday seemed to indicate that the Obama Administration’s work around for non-for-profit religious companies could, in theory, also be applied to for-profit closely held ones. Maybe the Court is foreshadowing that it will decide against Eternal World Television Network – if and when it takes that case.
Another solution would be to reform the ACA to say that anyone can choose to get insurance through their employers or to buy it on the exchange and that you have the option to take the employer plan or get your own. But, that also means that the individual mandate would need to be even stronger. Don’t forget, the reason the law was passed in the first place was because trillions of federal taxpayer dollars were being spent (redistributed) on the hospital bills of people who got sick, didn’t have insurance, and couldn’t pay – a problem that the mandates (both the employer and individual ones) are supposed to solve.
Harris v. Quinn.
I think the ruling in Harris was the worse than the Hobby Lobby one. Think about it, if public sector employees who don’t join the union can no longer be compelled to contribute to the costs of collective bargaining by that union – which is what the Court ruled in the case – a union which they reap the benefits of, then why even bother joining? You can now be a moocher and reap the benefits without paying a dime. Is it fair or should it be fair, for people to get the benefit of a union while refusing to join it (for political reasons or otherwise)? And if not, how do you solve the free rider problem?
If nobody joins the union, it folds, and so too will fold a large Democratic voting bloc. As such, I think the larger implication of the Harris decision is that it will diminish the voting power of a bloc of people who generally vote pro-labor and that it will contribute to a positive feedback loop whereby only pro-business candidates will get elected. Not good. And, Harris has implications in the context of women’s rights, too. If pro-business candidates get elected, who are they going to favor? The rights of corporations or the rights of women?
In closing, I urge you all to think critically about the issues I’ve raised here and to read the actual decisions (or summaries such as this or the ones on SCOTUSBlog) rather than the hyperbolic articles with catchy clickbait titles.
Hobby Lobby Decision: http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf
Harris v. Quinn Decision: http://www.supremecourt.gov/opinions/13pdf/11-681_j426.pdf
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