To prove that the Affordable Care Act’s contraceptive mandate was not the “least restrictive alternative,” the court pointed to a workaround in the law for nonprofits: If there are religious objections to a medical treatment, third parties will provide coverage to the employees. Yet in an unsigned emergency order granted Thursday evening, the very same court said that this very same workaround it had just praised was also unconstitutional, that this workaround also burdened the religious freedom of religious employers. Overnight, the cure has become the disease. Having explicitly promised that Hobby Lobby would go no further than Hobby Lobby, the court went back on its word, then skipped town for the summer.—
A couple of thoughts here, just to get them down.
First, this unsigned emergency order is NOT a ruling on the case. As the WSJ points out (emphasis mine):
Wheaton is challenging that accommodation [by the HHS for non-profits] as too restrictive, but the Court did not rule on the merits last week. All it did was grant a reprieve from having to obey the mandate while the case is being heard. This says little about how the Court might eventually rule, notwithstanding Justice Sotomayor’s angry implication. The reprieve will also not deny any reproductive services to anyone.
This sort of thing happens all the time.
Second, the Slate article quotes Justice Sotomayor’s dissent from the order (emphasis mine):
"Today’s injunction thus risks depriving hundreds of Wheaton’s employees and students of their legal entitlement to contraceptive coverage.”
This illustrates a significant fundamental issue—namely, whether contraception in particular, or health insurance in general, is a right. As I described here last week, I think it should NOT be a right. Is it important? Yes. Is coverage for all (who want it) an admirable goal? From a moral perspective, absolutely. From a public policy perspective, no way.
Those who are (fallaciously) whining about their bosses being in their bedroom seem to have no problem with government doing so, provided its doing what they want. The problem is that coercion can go both ways, and many on the left don’t appear to see the danger in that.
Doesn’t everyone see that once the government is in charge of paying for care, defining minimum coverage levels, implementing cost controls, etc., everything in this space becomes politicized? Everything. We need to remove the government-imposed incentives for employer-provided insurance, get the state out of providing/paying for care, and implement some basic reforms to allow an actual free market to work. Only then can we begin to clean up this mess.
Health insurance is not a right. Employers offer insurance both for tax benefits and to be competitive in the marketplace (since most everybody else offers it—see the vicious cycle?). Until the Obamacare employer mandate, they weren’t required by law to provide coverage (or at least they weren’t fined for NOT providing it); rather, they offered it in response to skewed market incentives (thanks, Uncle Sam).
Since insurance is not a right, this means that an employer who offers a health insurance plan to its employees should be able to offer whatever level of coverage it wants. This just makes sense on principle. And the reasons shouldn’t matter, since it would be a freely offered and freely accepted benefit. Some reasons might be religious or ethical: Hobby Lobby doesn’t want to pay for abortifacients, and reasonably so. Other reasons may be practical: a company that hires octegenarians might not want to pay for useless and expensive maternity coverage. An outdoorsman’s club that hires men exclusively might not want to cover OBGYN exams. Nobody is forced to work anywhere, and nobody is forced into an insurance plan. Except now. A single word sums up Obamacare: coercion.
Once the government decides that there are minimum levels of coverage that EVERY policy is required to meet, those levels have to be defined (hello there, unelected HHS bureaucrats!), and all of a sudden the narrative changes and we think we have a right to those coverage levels. (And we do have a right now, technically, from a legal perspective, thanks to Obamacare. But it’s a terrible idea, one that has already wreaked havoc on the system, and much of the ACA isn’t even in effect yet. Not to mention that the implementation continues to suck.)
So now the left is pissed that Hobby Lobby doesn’t want to cover 4 (out of 16) contraceptives in their insurance plan, but this only makes sense after the HHS mandated them as being required.
Does anybody remember that it was only a few years ago that most insurance plans didn’t even cover contraception? I mean, this is a relatively recent development. But everyone is up in arms about it now, after the Demcorats forced Obamacare down our throats and started creating new “rights” out of thin air.
Look, if we untangled insurance from the market-skewing incentives created by government meddling, and repealed Obamacare, and implemented some other basic reforms in the right direction (Obamacare reformed in the WRONG direction), a number of things would happen:
1) You would get paid more. Your salary would be the only way an employer compensates you (if they aren’t offering insurance coverage), and most likely all of your salary would come via your paycheck. That means YOU get more control over your money. It also means your employer wouldn’t have to spend all the overhead involved with shopping for and administering insurance plans.
2) You would get a much broader range of plan options that the 4-size-fits-all straightjacket crap options that Obamacare mandates. Plus, it would be cheaper, especially if insurers are allowed to sell across state lines. Maybe my wife and I decide we’re done having kids and we could save a bundle by not packaging maternity coverage into our plan. Maybe I’ve never smoked and never will smoke, let alone need coverage for nicotine addiction products. Insurers should have the right to offer the mix-and-match approach, and I should have the right to purchase a plan in that model.
3) The (bogus) controversy about your boss being in your bedroom would go away. When you shop for and buy your own plan, picking a choosing the coverage levels you want or need, the employer stays out of it. Surely that will stop the left from shrieking about being allowed to kill their babies in peace, right? No? Well, at least they won’t be able to demand that their employers pay for it.
4) You can quit your job (easier). Many people join or leave companies because of the awesome or terrible benefits. When you leave a job with great insurance, that coverage is gone since it was provided by your ex-employer.
De-coupling insurance from employment and implementing a free market approach would diffuse most, if not all, of the moral and political controversy about insurance coverage in the US. It would also reduce cost, increase choice (see, I can be pro-choice), and increase job mobility opportunities.
Here are a couple good reads from the last few days.
Hobby Lobby, Contraception, And The Primitivism Of Politics
The Illogic of Employer-Sponsored Health Insurance
A reduction in workforce size or overall hours of service for bona fide business reasons will not be considered to have been made in order to satisfy the workforce size condition.—
Treasury Department Regulation Document (page 125), published 2/12/14.The Obama Administration is delaying and modifying the employer mandate requirements, but they expressly forbid employers from reducing their workforces in response to (i.e. to avoid) the regulations—claiming that it’s not a “bona fide business reason.” (via obamacare)
Unbelievable. The tyrannical overreach continues.
Good morning, and welcome to Constitutional Law 101. Let’s get started. The first thing you need to know about the Constitution is — well, really the only thing you need to know — is that it’s a set of guidelines. And by ‘guidelines,’ I mean, ‘I can do whatever the hell I want.’—
Hilker nails it. This is probably how Obama introduced his Con-Law course.
It’s basically publicly funded disinformation.—
Publicly funded disinformation, off the top of my head:
Lies? Not necessarily. Just plenty of hubris and economic ignorance.
It is truly mind-boggling how this legislative monstrosity continues to go down in flames with each passing day day, yet the left wants to roast s’mores and sing camp songs around it.
I think virtually everybody agrees on a couple things:
- The healthcare system in the United States (both before and after the ACA) was a monstrously complicated thing. Health care was paid for by a bizarre amalgamation of employers, by states, by the federal government, by insurers, by individuals. Nobody designed this system—it’s just what we had.
- Prior to the ACA the combination of decreasing coverage and increasing costs were reaching crisis levels. The [monstrously complicated beast of a ship was sinking.
There were basically four options.
- Do nothing. Watch Rome burn. Maybe fiddle. While I understand the ideological appeal, you’ll understand why I might think this sort of thing tough option to defend.
- "Republican Common-Sense Solutions. Like, uh, Tort Reform." Except these were basically the same as the “do nothing” option. Back when the Republicans put an option on the table in the ’90s, it looked a lot like the ACA. This time around there wasn’t really a credible proposal. It was mostly just a proposal to wipe out states’ consumer protections.
- The Affordable Care Act. Or something like it. Some half-measure designed to extend coverage to as many people as possible while upsetting the system as little as possible. By necessity, it’s going to be as complicated as the healthcare system is.
- Something More Universal or Single-Payer. At the risk of annoying my friends on the left—I just don’t think this was possible in 2009. And if you think of the implementation problems we had with the comparably modest ACA, I can only imagine how rough a more ambitious change would have gone.
So we have the ACA, which isn’t all rainbows and unicorns—but it was better than the alternatives. As the conservatives love to point out, it was large and complicated. A bunch of pieces haven’t worked as desired. So they get tweaked, changed or dropped. But the body of the act works pretty well.
On the downside, a website didn’t work for a month. On the upside, we’re now looking at 3 million who have insurance through the exchanges, 6 million through expanded medicaid, 3 million more or so insured by staying on parents plans until 26. Perhaps it’s not all snow flakes and kitten giggles. But its worth a few s’mores and camp songs.
The ACA was passed with legislative dishonesty and political payoffs, and it is flawed philosophically (it’s a significant intrusion on personal liberty); it is blatantly unconstitutional (despite John Roberts’ twisted logic), impossible to execute well (as predicted), and was the cause of one of the greatest presidential frauds in history (“if you like your coverage you can keep it”).
So here are some of the biggest problems (so far) with implementing the ACA:
The young (more specifically, the young AND healthy) are not signing up at the levels required for the whole system to work. And why should they? The way the ACA works is to transfer a massive amount of wealth from the young and healthy (who consume few healthcare resources) to the older and more expensive people. We know definitively that the numbers aren’t there in the age-spread required, at least not yet. But people are also starting to recognize that age is less important than overall health. And guess what? Insurers don’t gather that info any more—thanks to the ACA: they aren’t allowed to deny coverage or raise individual premiums based on pre-existing conditions. It’s like forcing auto insurers to cover the 16-year-old male with three speeding tickets at the same rate as the elderly woman with no record and who drive 500 miles a year.
We also don’t know how many people have actually signed up and begun paying for their policies purchased on the exchange. The Obama administration likes to count page hits and shopping cart entries, but won’t release real numbers.
Fewer and fewer hospitals are accepting Medicare because the service payments are so low. In addition, the policies sold on the exchanges often have anemic in-network coverage, and those options are frequently local. If you bought a policy on the Maryland exchange (say), good luck finding an in-network urgent care clinic when your son breaks his arm while on vacation in Florida.
Fraud: “if you like your plan you can keep it.” This may have been the most dishonest part of Obama’s constant shilling in support of the ACA. It’s well proven that the administration knew they were over-simplyfing (to put it charitably), but the arguments of the political analysts won over the policy wonks who knew the truth. In trying to (politically) clean up their mess after millions started getting cancellation notices, the administration started making exceptions and re-writing regulations to allow people to take a “hardship” exception to the law, so they could still buy their old policies that don’t meet the minimum requirements of the ACA (foisting the one-size-fits-all approach is yet another illustration of liberal hubris). So not only is the HHS allowing the ACA itself to be a reason for granting a hardship exception to itself, the whole thing is screwing up the actuarial calculations of the insurers. Guess what that means for next year’s premiums (and beyond)? Yep, they go even higher.
The implementation of the ACA is a glorious example of the law of unintended consequences, and of the incredible hubris of the central-planning left who want to be judged on their motive and intent rather than their real-world results.