There was a lot of misinformation peddled about the Supreme Court’s ruling in Burwell v. Hobby Lobby this week. Liberals claimed variously that corporations now have more rights than people, that they can prevent women from getting birth control, that they can refuse to cover any medical procedure at all, and that they will soon be opting out of minimum wage and anti-discrimination laws. Justice Ruth Bader Ginsberg herself expressed some of those views in her dissent. Other commentators even wondered whether paying taxes could become optional. For a sampling of the idiocy, see in particular the rundowns from James Taranto [Wall Street Journal, July 2], Megan McCardle [Bloomberg View, July 2], and Sean Davis [The Federalist, June 30].
Of course, contraception is still legal. It might even still be free (to the user at the point of delivery, that is) if the government extends to for-profits the accommodation it created for non-profits or decides to finance the benefit directly. So what’s all the outrage about? Julian Sanchez opines that it’s about cultural signaling:
The outrage does make sense, of course, if what one fundamentally cares about—or at least, additionally cares about—is the symbolic speech act embedded in the compulsion itself. In other words, if the purpose of the mandate is not merely to achieve a certain practical result, but to declare the qualms of believers with religious objections so utterly underserving of respect that they may be forced to act against their convictions regardless of whether this makes any real difference to the outcome. [Cato Institute, June 30]
Contrary to the Left’s fears, the Religious Freedom Restoration Act is not a blank check for anybody to opt out of any law simply by checking the religion box. Not any burden on religious practice is forbidden, but only substantial ones. And even substantial burdens may be imposed when there is a compelling government interest that cannot be served with a less restrictive means.
(By the way, the Religious Freedom Restoration Act was passed in 1993 by a bipartisan vote—unanimous in the House and 97-3 in the Senate—and signed by President Bill Clinton. Many liberals at that time supported the law because they felt that the Supreme Court was not solicitous enough of religious practice in its application of the Free Exercise clause of the First Amendment.)
In Burwell, the Court suggested a number of less restrictive ways the government could have ensured cost free access to birth control, but it didn’t definitively decide what the least restrictive way was. Veering into economics for a moment, the idea of cost-free access is an accounting illusion. Employees get health care for the same reason they get a salary: Their employer values their work—up to a certain point—and wants to retain their services. But the price the employer is willing to pay for labor doesn’t vary by the composition of employees’ compensation packages. If government mandates better health insurance, then employees will pay for that in the form of lower salary.
How compelling can the government interest be when the means it has chosen don’t even accomplish the ends it thinks it is accomplishing? If the federal government hadn’t first encouraged (through the tax code) and then mandated (via ObamaCare) employer-provided health insurance, then employees would have more salary that they could spend on whatever they want, including whatever health insurance coverage they desire.
So if the critics of Hobby Lobby want to get their bosses out of their health care, they should really be in favor of getting the government out of their health care. But that can be a hard point to see for those who believe that all businesses are Scrooges who want to take away the Christmas presents. And that is just the point. Megan McArdle perfectly lampoons the mania of the week:
What if my employer says it has a sincere religious belief in human sacrifice – can he kill me?
Yes. If your employer has a deeply held religious belief in human sacrifice, they can strap you in a cage, reach into your chest with their bare hands to pull out your still-beating heart, then drop the cage into a fiery pit. It’s a tough break, but from time to time, the Tree of Liberty must be watered with the blood of patriots. Sorry about that. [Bloomberg View, July 2]
H.L. Mencken, meanwhile, remains spot on:
Civilization, in fact, grows more and more maudlin and hysterical; especially under democracy it tends to degenerate into a mere combat of crazes; the whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, most of them imaginary. [In Defense of Women by H.L. Mencken (1918)]