Yesterday’s narrow Hobby Lobby decision shows why the culture war isn’t over – it’s just getting started. The reality is that in the absence of the ability to compel employers to pay for things over their religious objections, and at a time when covering 16 forms of birth control out of 20 is culturally insufficient, the Obama administration will be more than happy to turn to the traditional method of the left: skipping the middle man of the employer and just handing people other people’s money.
Following oral arguments, I was not optimistic about this ruling. The Court could have bought into the argument that Hobby Lobby can’t really complain about this requirement when they have the capability to not offer coverage at all, instead shifting people under their employ to the taxpayer via Medicaid or the exchanges. The penalty for offering coverage which fails to meet essential benefits is clearly absurd and sizable, but the penalty for not offering coverage at all would actually cost them less than offering coverage in the first place (around $26 million per year). The “gun to your head” penalty was the one which moved the court on the Medicaid/federalism question before, in a ruling that unexpectedly led to half the states declining to expand Medicaid. Justices Kagan and Sotomayor stressed this in oral argument and the Court could have found that this factor removes the pressure of an actual requirement. You can understand the reasoning: Just like the requirement to purchase insurance, it’s not illegal, it’s just a tax!
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