LOS ANGELES, March 28, 2014 — Americans of faith closely watched the March 25 oral arguments before the Supreme Court in the case of Sebelius v. Hobby Lobby Stores, Inc. The nine Justices will weigh the arguments in this landmark case, addressing the constitutionally guaranteed rights of business owners to operate their family companies without violating their deeply held religious convictions. The Justices are expected to have a ruling sometime in June.
Hobby Lobby is a Midwest arts-and-crafts giant owned by the Green family. This family of evangelical Christians appears to do well by their employees. The company offers a minimum wage of $14.00 an hour, and in 2010, they chose to provide an onsite comprehensive health care and wellness clinic with no co-pays to its Oklahoma City headquarters employees.
Despite Planned Parenthood’s and certain media outlets painting this as an access to birth control issue, that is not the case. Hobby Lobby does not object to providing coverage for basic contraception—their insurance plans already cover over 30 different forms of contraception. What the Greens balk at are certain “treatments” like the Morning-after and Week-after pills; abortifacients that are clearly meant to terminate a newly-conceived life. The Greens believe that supplying these four abortifacients would violate their evangelical Christian religious beliefs.
The attorneys for Hobby Lobby are basing their case on the protections afforded under the Religious Freedom Restoration Act (RFRA) of 1993.
Conestoga Wood Specialties Corp. is owned by Christian Mennonites, and is also positing that its religious freedoms are being violated. While Hobby Lobby and Conestoga Woods are the faces of this lawsuit, they are only two of 47 lawsuits against the government brought by for-profit companies. According to the Becket Fund for Religious Liberty, a Washington, D.C.-based law firm representing Hobby Lobby, another 47 nonprofit groups which include religious-affiliated schools and charities of different faith systems have also sued, making similar claims. So the ruling one way or the other will have a ripple affect throughout the religious life of our nation—whether that base be Christian, Jewish, Muslim, or Buddhist.
In an article from November 2013, Bloomberg’s Megan McArdle hit it right between the eyes that this is not a battle that will increase support for the troubled Obamacare law; if anything, resentment toward the intrusive law has only increased as it limps through implementation; or lack thereof. McArdle writes, “There are many religious people in America, and if you want to keep stirring up active opposition to the law, one good way is to suggest that this law forces them to pay for something they are convinced is morally wrong.”
The Vatican has made clear its opposition to the Health and Human Services employer mandate. While the President’s meeting with Pope Francis in Rome has been spun as an agreement on social justice and income inequality, the topics of the HHS mandate and the President’s strident support for abortion could not have escaped the conversation.
But these lawsuits are not the only ones chipping away at the already eroding structure of this law. Two other cases, Indiana v. IRS and Pruitt v. Sebelius takes a different tack with the employer mandate. Indiana v. IRS argues that the IRS’s enforcement of this mandate in states that have opted out of Obamacare’s health insurance exchanges is a violation of state sovereignty and a misapplication of the law.
Indiana Attorney General Greg Zoeller commented, “This case is about the fundamental relationship between the State and federal government. We respect the United States Supreme Court’s ruling last year upholding the individual mandate to buy health insurance; but it did not address the recent IRS regulations extending the reach of the ACA’s employer mandate.”
Pruitt v. Sebelius calls into the question the subsidies offered through the exchanges. From Martindale’s blog: “Under the legal theory being pursued in the Oklahoma suit, individuals would not be eligible for federal premium subsidies for coverage purchased through a federally facilitated exchange. Moreover, because the penalties under the Employer Mandate are triggered by a full-time employee receiving a federal premium subsidy, employees working in states that default to the federally facilitated exchange could not trigger any penalties.”
The Los Angeles Times reported on this legal position in October 2013, but only mentioned the cases in general, intimating that this tactic could be adopted by the other 30 or so states that chose to opt out of creating a State-run exchange. More battles that the Obama administration may not have the ammunition to fight. This law is like a ship taking on water, and springing new leaks at every turn. The administration does not seem to know whether to bale water, or patch holes. Sun Tzu said in “The Art of War”, “Hence that general is skillful in attack whose opponent does not know what to defend; and he is skillful in defense whose opponent does not know what to attack.”
These lawsuits are the ones in the forefront, but there are many more wending their way through lower courts. Challenges focused on the IRS’ involvement in the law (Halbig v. Sebelius, King v. Sebelius), the Independent Payment Advisory Board (IPAB) (Coons v. Geitner), as well as the HHS employer mandate and origination clause challenges mentioned above.
This week the Obama administration announced yet another delay, deciding to give extra time to Americans who say that they are unable to enroll in health plans through the federal insurance marketplace by the March 31 deadline. So if you have begun to apply for coverage on HealthCare.gov, but you do not finish by Monday, you will have until roughly mid-April to ask for an extension. The term “delaying the pain” comes to mind—both the administration and ours.
No doubt the HHS hopes to rally the young-and-healthy who still only represent 25 percent of the current enrollment into getting on board. Without their money and the balance such a base brings to the already lopsided risk pool, the law’s financial viability looks bleaker and bleaker.
With all of these factors, one would think Obamacare would just implode upon itself. However, even one favorable ruling for the States or the employers in these cases would strike a major blow, and hopefully hasten its demise.