The religious conservatives who supported Hobby Lobby's challenge to the Affordable Care Act's contraception mandate won on Monday, when the Supreme Court ruled that the birth control regulations violate the Religious Freedom Restoration Act. But they didn't get everything they wanted. Their hope was that the Court would grant employers the unqualified right to infuse their companies with religious identities for the purposes of exempting themselves from a rule requiring employer-sponsored health plans to cover contraceptives, including day-after contraceptives.
Liberals correctly worried that such a broadly drawn ruling would generate a flood of claims from conservative business owners, seeking exemptions from workplace regulations, non-discrimination statutes and other generally applicable laws.
Instead, a conservative 5-4 majority on the Supreme Court granted the right to a narrower class of closely held corporations, and made clear that its ruling doesn't necessarily carry implications beyond the contraception mandate specifically. By declining to extend the ruling to other insurance mandates, the five justices affirmed what liberals have suspected all along: Hobby Lobby supporters weren't fighting for "religious liberty." They were fighting for an affirmation of privilege for advocates of conservative sexual morality.
My religion trumps your “right” to employer subsidized consequence free sex.
— Erick Erickson (@EWErickson) June 30, 2014"Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer's religious beliefs," wrote Justice Samuel Alito, perhaps attempting to head off this objection. "Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them."
But he chose his counterexample too cleverly. In fact, immunizations may just be the exception that proves the rule. As Justice Ruth Bader Ginsburg explained in her dissent, there are potential religious objections to mandates guaranteeing coverage of everything from mental health care to pharmaceuticals, and no clarity as to which should stand and which should fall. If conservatives are consistent, a bunch of them ought to go. I'm skeptical that many—or any—of them will.
The very existence of the Hobby Lobby controversy is an argument for taking employers out of the business of subsidizing employee health care altogether: for more Obamacare, not less; or perhaps for a single-payer system. Ironically, and appropriately, the ruling probably prefigures a call for a greater, not smaller, government role in the health care system, whether through subsidization or direct provision of contraception to Hobby Lobby employees and employees of other closely held religious corporations. Whatever steps Congress or the Obama administration take to address the inequities created by Monday's ruling will also draw the right's true motivating beliefs out into the open. If the idea here is merely to protect Hobby Lobby's owners from subsidizing certain contraceptives, Republicans will have no problem helping their female employees obtain them through other means, cost free. When they object, the jig will be up.
I think Hobby Lobby employees will eventually be made whole one way or another, and the controversy surrounding the specific objection to subsidizing birth control will subside. That would actually be an okay outcome. But we'd still be left to worry that the definition of "closely held" will change, or that the Court will surprise us and ultimately grant business owners more and more exemptions from insurance mandates, leaving larger numbers of workers exposed to bigger and bigger coverage gaps.
In a saner world, we'd end run around all of these potential controversies by rapidly phasing out the employer-sponsored health care system. The problem is that Obamacare has turned conservatives into de facto supporters of that system. It wasn't very long ago that conservatives renewed their calls to repeal Obamacare because the Congressional Budget Office affirmed that it creates work disincentives. Weakening the link between employment and health insurance was a big contributor to that effect. But that's just to say that any system guaranteeing people affordable insurance outside the workplace will have the same "problem." Which means we're a long way from any of the obvious solutions to the contraception issue and the employer health care dilemma more generally.