Burwell v. Hobby Lobby: What it Is, and What it Ain’t [Hub Debate]


Hobby LobbyWith the Supreme Court ruling 5-4 in Burwell v. Hobby Lobby on Monday, finding  that for-profit employers with religious objections can opt out of providing contraception coverage under Obamacare, our debate topic is set: did the Supreme Court get it right? Or wrong? 


I have thought long and hard how to approach today’s Burwell v. Hobby Lobby (i.e., the Religious Freedom Restoration Act challenge to the Affordable Care Act’s contraceptive/abortifacient/sterilization mandate (Mandate)). I have written on various aspects of this subject before, but I wanted to really get at what this case is about.

After reading multiple federal government briefs, after reading multiple lower-court decisions castigating the federal government for their weak arguments, and after listening to Supreme Court oral arguments, I realized what this case is not about: it is not about ensuring all women have access to contraceptives, abortifacients, or sterilizations through their employer-based health insurance. The federal government itself grandfathered (i.e., exempted) employer-based plans covering upwards of over a hundred million people from the Mandate. Moreover, the federal government can provide these items and services to uncovered women through discretionary spending. (The evidence for this is the fact it already does it, and has for quite some time.)

So, what is this case about? Best I can tell, this case is about two things (1) cost-shifting, and (2) pride.

First, the ACA designed a system in which the cost of health insurance coverage is placed (overwhelmingly) upon corporations. This, at least in theory, shifts health-care costs away from the government, thereby decreasing governmental expenditures. However, if religious organizations are allowed exemptions from the ACA, then costs shift back to the government. This forces the government to make tough decisions — e.g., raise taxes, incur more debt, reallocate discretionary spending, etc. Ultimately, the government did not want to reacquire the costs it believed it had shifted away from itself.

Second, “[p]ride goeth before destruction, and an haughty spirit before a fall.” Proverbs 16.18. The ACA is President Obama’s signature legislative accomplishment. It was, in a very real sense, the last big legislation he was able to shepherd through Congress. With accomplishment comes pride, and pride in maintaining Obama’s accomplishment seems to be a real force behind the Administration’s tenacious and often oddly uninformed defense of the Mandate. (I’ll give many examples when I write a more legal analysis of the case.) The Administration dodged a bullet with the Commerce Clause challenge to the ACA — tax my heinie, Mr. Chief Justice — and this RFRA challenge was another salvo in the war against the ACA. As in all wars, you do things that do not make a lot of sense, and that was what happened here as well. (Quick example: arguing corporations are not persons under RFRA even though the Dictionary Act explicitly includes corporations in the definition of “person”. Really?)

You just got the idea after a while that the Administration never had a coherent plan to defend the Mandate. Even through oral arguments at the Supreme Court, the Administration kept changing fundamental arguments, including adding some at the last minute that it had never previously argued in any of the numerous appeals it filed — a big no-no in appellate advocacy. When pride is your motivation, cogency tends to lack.

In the end, I might be way off base. That noted, whatever Burwell is really about for the Administration, it certainly is not about winning.

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