The Post reports: “A divided Supreme Court seemed inclined to agree Tuesday that the religious beliefs of business owners may trump a requirement in President Obama’s Affordable Care Act that they provide their employees with insurance coverage for all types of contraceptives.” At issue specifically is whether the Religious Freedom Restoration Act affords a for-profit corporation a religious exemption from Obamacare’s contraception mandate. The report observes that “it was difficult to predict a precise outcome from the spirited 90-minute argument.”
Boy, was it ever. In the companion cases Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius there are multiple ways to narrow the decision (e.g. rule only with regard to closely-held companies as Chief Justice Roberts might prefer) and multiple ways to require an exemption (e.g. There are less onerous alternatives that preserve religious liberty?). It was in many ways one of the most unsatisfying oral arguments in a long time, in part because the law at issue is so amorphous.
The number of issues (Can a corporation claim a religious liberty right? How can the government’s interest in requiring contraception be “compelling” if it allows all these grandfathered plans? Are we going to compel employers to cover abortion services as well?) was dizzying and it didn’t help that the justices, more than usual, interrupted the litigants repeatedly. There are, nevertheless, several overarching takeaways that impact not only this issue but also the liberal welfare state more generally.
The justices’ apparent frustration with finding limiting principles was evident. What about requirements to offer vaccinations? What about requiring abortions be covered? The idea that religious entities can follow none of the laws or must follow all of them is distasteful, and yet the uncertainty seemed to unnerve a number of the justices. However, the dilemma is one of the court’s own making in insisting on subjective “weighing” tests that leave each decision up in the air (and usually at the mercy of Justice Kennedy), but also of Congress which punts these issues to the court with no finding as to the centrality of certain requirements. If it all seems arbitrary and ad hoc, it is.
Add to that the uncertainty about the future, the Obama administration’s multiple delays, exemptions and unilateral changes in the law. You have decisions casting individuals and employers on one side or the other of a dividing line set up not even by Congress but by bureaucrats. The maze of exemptions and accommodations amounts to an evisceration of the rule of law. Now it is government by whim (HHS does not accommodate for profit businesses but it will work with non-profit corporations.) This bothered several of the justices, and it should bother all of us who look to the law for predictability and fairness.
These cases and the debates they spur illustrate why the underlying premise of the law — compulsion to offer and to buy insurance — is fraught with problems. When the state resorts to these sorts of compulsory schemes that impact hundreds of millions of people and how they run their lives and businesses, it is necessarily going to run afoul of individuals’ economic, religious and personal preferences and beliefs. The state tries to accommodate some, but not all. The rules become unwieldy, are perceived as playing favorites and soon engender contempt for the law and resentment by the citizenry. Whatever the chief justice thinks on Constitutional grounds, this is the essence of the argument for getting rid of the entire Obamacare scheme. Whether the federal government can claim the power to direct a large segment of the economy and disrupt millions of pre-existing arrangements is different than whether it is wise to do so, whether the societal disruption and upset is worth it.
In the case of Obamacare too little good (shuffling people from one insurance scheme to another, extending insurance to an undetermined but small minority) is done at the expense (literally and figuratively) of too many people and entities in too many ways. This criticism extends beyond Obamacare to the essence of the liberal welfare state and many other gambits (e.g. climate change regulation), which thanks to Obamacare, the public has come to see as far more unworkable, unfair and unaffordable than previously imagined.