The Affordable Care Act is a Soviet-style Leviathan, enacted by a Congress eager to crush liberty under a boot of mandates.
The Affordable Care Act is a half-hearted, ineffectual Potemkin village, enacted by a Congress that didn’t really care one way or the other.
Paul Clement warned the Supreme Court in 2012 against Obamacare A—the dystopian Big Brother. Today, he was back at the Supreme Court to warn against Obamacare B—the flimsy Funny Uncle.
The facts of the two cases the Court heard today, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corporation v. Sebelius, are these: The ACA requires employers either to pay a tax or to provide health insurance for their employees. The health insurance provided must comply with guidelines developed for the Department of Health and Human Services by the Institute of Medicine. These guidelines require coverage for vaccination, diabetes screenings, domestic violence counseling—and the full set of medically approved contraceptive methods.
There are exemptions, of course. Businesses that have 50 or fewer employees do not need to provide the insurance or pay the tax. “Religious corporations,” such as churches and convents, may omit contraceptive coverage from their plans altogether. Religiously affiliated non-profits, such as hospitals, may certify their objection to contraception; their employees will receive coverage from the third-party insurer without participation by the employer. And for-profit companies with existing plans are temporarily “grandfathered”—if the current plans don’t cover contraception, they don’t need to add the coverage until they make major changes to their plans.
Hobby Lobby Stores and Conestoga Wood, however, don’t fit any of these categories. Conestoga Wood, owned by a Mennonite family, makes specialty wood products and employs 950 people; Hobby Lobby is a chain of craft stores owned by devout Baptists, employing more than 13,000 people. Both businesses object to four currently approved methods of contraception, claiming they are “abortifacients.” They want an exemption permitting them to offer policies to employees that will not cover those four. They base their claim not directly on the Constitution’s Free Exercise Clause, but on the Religious Freedom Restoration Act. That Act was passed in 1993 to reverse a 1990 case in which the Court held that the state of Oregon could deny unemployment insurance to two individuals who had been fired for attending a peyote-religion ceremony. The Act restored what was called the “compelling interest” test—the state may not “substantially burden” a “person’s” practice of religion unless there is a “compelling interest” and the burden is the least restrictive way to further it.
The first obstacle for the companies is the fact that they are for-profit companies. Clement tried to dispose of that by pointing to an earlier law, the Dictionary Act, which defines the word “person” to include corporations. The term “specifically applies to all corporations, to joint partnerships, to societies,“ he said. Solicitor General Donald Verrilli countered that the Dictionary Act didn’t define “exercise of religion”: For-profit corporations don’t exercise religion, he said. “In the entire history of this country, there is not a single case in which a for-profit corporation was granted an exemption.”
Justice Scalia interjected, “Not a single case in which it was denied exemption, either.” Verrilli pointed out that an Amish business owner had been denied an exemption from paying Social Security tax on his employees; but one doubts he convinced Scalia.
The real battle was about whether the Act’s aims—expanding health-care coverage for workers and families, boosting public health generally, and facilitating women’s access to reproductive health in particular—are “compelling.” “There is a compelling interest in women's health and in the health of the family,” Verrilli told the Court. “And so the government has said provide it.”
Clement responded: If contraceptive coverage is important, why did the ACA allow some religious corporations to opt out? Why does it allow “grandfathered” plans not to add it until they make changes? “When the government pursues compelling interest, it demands immediate compliance. It doesn't say, ‘Get around to it whenever it's convenient,’” he said. “I can't imagine Congress passing Title VII [forbidding employment discrimination by race and sex] and saying, ‘Stop discriminating on the basis of race, unless of course you have a preexisting policy that discriminates on the basis of race, and then you can keep it as long as you'd like.’”
Justice Elena Kagan pointed out that Title VII had in fact delayed its effect on small business to give business owners time to adjust. Verrilli pointed out that Title VII in fact, a half-century after passage, still doesn’t apply to employers with fewer than 15 employees. Verrilli added that the Americans With Disabilities Act delayed its prohibition on disability-discrimination for two full years to allow time to prepare. “I don't think anybody would doubt that the Americans With Disabilities Act advances interest of the highest order,” he said.