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SCOTUS: Corporations Have More Religious Freedom Than Taxpayers

July 01, 2014

By Avik Roy

For all of the non-stop wall-to-wall coverage of yesterday's Supreme Court decision in Burwell v. Hobby Lobby—in which the Court ruled that the government doesn't have the authority to force “closely-held corporations” to violate their religious beliefs—a simple fact has been lost. The ruling did not overturn a single word of the “Affordable Care Act,” otherwise known as Obamacare. Nor did the Supreme Court prevent the government from requiring that taxpayers finance abortion-related services.

Pro-life activists—and Obamacare opponents—are cheering today. But when they sit down and reflect, they'll realize that they haven't won a thing.

The Supremes endorsed the White House's ‘accommodation' of Catholic institutions

On page five of the Supreme Court opinion, Samuel Alito spells out how the Obama administration can get around the Court's ruling that the administration can't force Hobby Lobby to offer health insurance plans with contraception and abortifacient coverage. “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,” writes Alito.

Ah, but who finances the government? Taxpayers. In other words, while the government can't compel Hobby Lobby to finance abortifacients, it can compel taxpayers to do so. Isn't that a distinction without a difference?

Alito continues:

“Or [the White House] could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit 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.

Alito refers to the “accommodation” issued by the White House originally in 2012, and revised in 2013—whereby taxpayers could pick up the tab for contraceptive coverage, instead of religious employers—as a great solution to the First Amendment issues in question. But when the White House issued that “accommodation,” social conservatives were far from pleased.

But last year, social conservatives called the accommodation ‘phony'

In a 2013 blog post for National Review, my colleague Grace-Marie Turner explained why the accommodation was “no different than the [contraception mandate] issued last year,” because the contraceptive services at issue would still get taxpayer funding. “This is simply money laundering,” she wrote at the time. On Monday, Grace-Marie wrote another piece describing the accommodation as a “shell game to shift funding for the mandated provisions to insurance companies. But ultimately the employer would still pay because the cost would be buried in higher premiums.”

Grace-Marie wasn't the only one calling out the so-called “accommodation.” Ed Whelan, another National Review contributor, called it “phony.” Cardinal Timothy Dolan, president of the U.S. Conference of Catholic Bishops, in 2013 issued a statement highlighting the fact that the accommodation might protect explicitly religious institutions, but still would infringe upon “the freedom of the Church as a whole—not just for the full range of its institutional forms, but also for the faithful in their daily lives.” (Emphasis added.)

The ruling doesn't at all affect the operation of Obamacare

Let's be clear about one thing. In the Hobby Lobby decision, the Supreme Court overturned a single regulation issued by the U.S. Department of Health and Human Services. It didn't overturn a single provision of the Congressional statute enacted in 2010 called the Affordable Care Act.

You wouldn't have that impression based on the media coverage of this case. You'd think instead that by overturning HHS's contraception mandate, the Supreme Court had overturned a huge chunk of the new health law. Nope.

Will this even give HHS a second of pause as it rolls out more and more Obamacare-related regulations? Hardly.

Think about it this way. HHS is throwing hundreds of regulations up against a wall. Only one of them has been overturned by the Supreme Court.

What's more, access to oral contraception has not, and is not, a public policy problem. As I noted in 2012, you can buy a month's supply of oral contraception at Wal-Mart for $9. Indeed, the consequence of the HHS contraception mandate will be to make oral contraception more costly, because consumers will have no incentive to shop for less-costly brands.

To HHS, and to Obamacare advocates, Burwell v. Hobby Lobby is nothing but a speed bump en route to building an entirely new federal regulatory regime for health care.

Original Source:



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