Sorry, TNR, But Coaxing Single Payer Victory Out of Hobby Lobby Defeat Doesn't Work


The New Republic's Jonathan Cohn has an interesting post up arguing that the Supreme Court's Hobby Lobby ruling suggests that the way to deal with the constitutional and ethical issues raised by Obamacare's contraceptive mandate is to implement —

American Life League / Foter / Creative Commons

this will come as a complete surprise to H&R readers so wait for it — single payer!

He notes:

The fundamental problem here is the way the U.S. has decided to provide its new entitlement to health insurance. In many other countries, the government takes on this responsibility directly, by creating its own insurance program or regulating insurers as if they were public utilities…

Health care is full of decisions that raise complicated ethical questions on which, inevitably, religious beliefs can dictate certain views. It's not just whether to use certain forms of contraception. It's also whether to use stem cell therapy, how to treat the end of life, and whether to take blood transfusions. The question is not whether the owners of closely owned corporation have a right to their religious views. Of course they do. The question is whether those views should affect the provision of a public program, enacted in part to promote public health as defined by public health professionals…

It's worth remembering that, strictly speaking, the Obamacare mandate doesn't "force" employers to pay directly for coverage of contraception or any other medical service. The law simply requires that employers bear the burden of medical expenses, broadly defined. They can do so by paying a fee to the government or, if they choose, they can decide to provide insurance on their own. The only caveat is that, if they decide they want to provide insurance, the policies must conform to certain regulations—among them, coverage of so-called essential benefits. And the federal government, relying on the (very sound) judgment of public health professionals, has decided that contraception belongs to that list.

The obvious solution to this dilemma is to take health insurance away from employers altogether… And, over the long run, it's easy enough to imagine a world in which employers were truly out of the health insurance business altogether—a world in which all people got health insurance directly from the government or tightly regulated insurers.

(Emphasis added.)

A few thoughts.

One: By calling Obamacare a "new entitlement" and a "public program" he has basically accepted that the program constitutes a de facto government takeover of one-sixth of the economy, a conclusion that liberals have generally resisted. Leftists, notes Cato Institute's Michael Cannon, have been trying to convince Americans that Obamacare is not a step in the direction of socialized medicine as opponents claim because it uses private insurance and relies on market forces to deliver coverage. Cohn's candor is both refreshing and clarifying, so thanks, Jonathan, for that.

Two: Cohn claims that Obamacare offers employers a choice to provide contraceptive coverage: Either spring for employee insurance that includes all the 20 FDA-approved contraceptives (as opposed to only the 16 that were consistent with Hobby Lobby's religious tenets) or hand the money over to the government to purchase such coverage.

This is bizarre because he is basically inviting even more employers to dump their employees on to Obamacare's exchanges, turning President Obama's promise that "anyone who likes their current insurance can keep it" into even more of a lie.

Furthermore, the Religious Freedom Restoration Act says that the government has to achieve its ends in a way that least burdens religious rights. Cohn is saying because Obamacare gives employers an option to offer contraceptive coverage or pay the government to do so, it is, strictly speaking, not a mandate. OK. Call it a regulation. Or a Buddhist chant. Or whatever. But would re-defining the mandate as something else satisfy RFRA's stipulation?

I don't think so. The mandate, as Justice Alito noted in his ruling, would have cost Hobby Lobby $475 million in annual fines for not including contraceptive coverage (in addition to the cost of providing the rest of insurance.)  And what would Cohn's regulatory option cost?  According to Kaiser Health News, roughly $26 million in penalties plus, presumably, funds to the government to purchase coverage. But, in the process, I'm guessing, it would lose its health care tax exemption — putting it at a considerable disadvantage vis-à-vis its non-religious competitors. (Otherwise, why wouldn't it do it?)*

To paraphrase Justice Alito, if this doesn't burden religious rights, then what does, especially when there is at least one less intrusive way: Make oral contraceptives available over the counter, as I previously argued here?

Three: Cohn contends that replacing Obamacare and its reliance on employer-sponsored coverage toward a Medicare-style single-payer system would avoid such knotty constitutional and ethical issues. Perhaps.

But so would fixing our idiotic tax code and handing individuals who pay out-of-pocket for coverage the same tax exemptions as their employers. Individuals would be able to buy their own coverage with their own money as per their own religious convictions without forcing anyone to violate theirs. Liberals could still keep forcing Americans to play their brother's keeper — as Cohn says we all should be doing — and demanding generous subsidies for those for whom the tax credits are not enough to get "acceptable" coverage.

But giving patients some modicum of control of their health care dollars would also unleash market forces to lower soaring costs without resorting to price controls or rationing (and the first one who says markets ration too — just by price — will have to pay for my nose job!) or lopping off five years from the life of cancer patients or creating a giant Rube Goldberg contraption to manage all the perverse incentives of single-payer.

I understand — though disagree — with the liberal end of universal coverage. But what I've never understood is why they want to employ the least efficient and most heavy-handed means that violate the Constitution and erode freedoms to achieve it.

(For more on "repealing and replacing" Obamacare with a free market system that contains tax parity for individuals, deals with the pre-existing condition issue and other liberal objections, read this excellent National Journal piece by Jim Capretta and Robert Moffit.)

* This section has been reworded for clarity