Like a large portion of Americans, I spent a good chunk of my day reading Burwell v. Hobby Lobby. The opinion is astonishingly broad, badly reasoned in several places, and skips any number of good, clean, judicially-restrained “outs” in favor of the holding it does give. Such a broad opinion naturally gives rise to broad concerns, of which these are my top two (and a half):
1. Can my employer now refuse to pay me in money if making payments in money violates the religious beliefs of a shareholder, partner, or director?
Contrary to popular belief and its titular descriptor, health insurance is not a “benefit” or gift bestowed by a benevolent employer on an employee. It is compensation, paid to an employee who has earned it with his or her labor.
Prior to the ACA, health insurance was a “benefit” only in the sense that employers could choose whether or not to offer it as one of the types of compensation by which they paid their employees. Post-ACA, however, employers of a certain size no longer have that choice; they must pay at least part of the compensation of their full-time (as defined by the ACA) employees in health insurance form.
Can the federal government require employers to pay their employees in certain forms of compensation? Well, yes. Before religion gets into it, a “you must pay compensation in X form” law only has to have a “rational basis” for existing. Requiring that part (not all) of an employee’s compensation be paid in health insurance rationally furthers a legitimate state interest: when people have coverage, they get treatment for illnesses and injuries, reducing the costs and burden on public health systems and the risk of things like pandemics. The government could require that part of an employee’s compensation be paid in any form, as long as the government could demonstrate a rational basis for that requirement. (Requiring that employees be paid in legal tender has a pretty obvious legitimate state interest: money is fungible, and people who can buy their own needs don’t need the government to feed them. Requiring that employees be paid in turnips, however, might not, especially if there’s no freaky surplus of government turnips or similar extenuating circumstance.)
Burwell holds, however, that the stakeholders in a closely-held corporation did not have to provide contraception coverage to employees if it violated their sincerely-held religious beliefs to do so. In other words, the employer does not have to pay compensation to its employees in the form of health insurance, because some of that health insurance might be converted into contraceptives (after a private conversation between the employee and her physician) and the employer’s (owners’) religious beliefs prohibit contraception.
The problem here, of course, is that you can replace “contraception coverage” with literally any other form of compensation in the above statement and the Burwell argument still follows. The problem is not the form of compensation but the existence of a religious belief proscribing compensation in that form. So if, say, I belong to a religion that proscribes the possession of images of the human face (and there are several that do), I could argue that I should not have to pay compensation to my employees in the form of cash – and, since other forms of money transfer like check or wire can be converted into cash (after a private conversation between the employee and his or her banker), I could also argue that I should not have to pay compensation in any monetary form, because my religious beliefs prohibit the possession of images of the human face, which of course appear on all or nearly all U.S. currency. The logic is the same.
But even if we can distinguish “I shouldn’t have to pay in health insurance” from “I shouldn’t have to pay in cash,” we still have a compensation problem. And that is….
2. What else can my employer tell me I cannot buy with the compensation I earned from working?
Health insurance coverage provides payments for a wide range of health-related services: office visits, testing, surgeries, hospital stays, emergency medical services, and yes, prescriptions. Which ones any individual employee purchases tends to depend not so much on the employee’s preferences as on the employee’s medical needs, but even an employee in a medical bind still has some choice. An employee who opts for medication for a non-life-threatening condition has more options and more time to try them out – and, as anyone who has ever been on antidepressants knows, sometimes you try out a lot of options before you find the one in the class that works for you.And yes, one of the many things an employee might choose to buy with the health insurance portion of the compensation she earned by working is birth control. If my employer’s (owners’) sincerely-held religious beliefs allow my employer to forestall me from using some part of the compensation I earned to buy contraceptives, what prevents my employer’s (owners’) sincerely-held religious beliefs from forestalling me from using some other part of the compensation I earned to buy something else that offends my employers’ (owners’) beliefs? In short, if my employer can prevent me from using the “health insurance” part of my compensation to buy contraceptives, what else can my employer prevent me from using some part of my compensation to buy? Books? D&D paraphernalia? Mission trip supplies? Sex toys? Food? I would not expect a carte blanche “you may not buy pork or alcohol with that paycheck,” for instance, to stand up in court. But if it failed, it would fail for reasons of politics, not for reasons of logic. (and a half). Do the words “conservative” and “judicial restraint” mean anything anymore? Burwell v. Hobby Lobby charts some previously-uncharted waters in Constitutional jurisprudence. Just a few days ago, in NLRB v. Canning, Justices Alito, Scalia, and Thomas and Chief Justice Roberts concurred just to say that they think the recess-appointments rule is “outdated” and that they’d prefer to eliminate it entirely. NOW WAIT A MINUTE. I thought “conservatives” were supposed to be pro-upholding the status quo against the rushing onslaught of frivolous change. I thought they were the defenders of tradition, precedent, “heritage,” and doing things because that’s the way we’ve always done them therefore AMERICA. Yet, in just two days we get “judicial restraint” that does things never before done in First Amendment or corporate jurisprudence and “conservatives” who want to change a longstanding rule – that governs the other two branches of government, no less – because it’s “outdated.” How is logic? What is words? Who meanings?
(Note: I use “she” throughout to refer to the contraception-purchasing employee for convenience, although I am aware that not everyone who uses HBC identifies as female and not everyone who identifies as female has a use for HBC.)