by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Obamacare, as we all should know by now, advanced the long-continuing, gradual government takeover of health-care finance. It converted a private insurance benefit that was offered by employers voluntarily into a requirement that most businesses provide health insurance or pay fines and taxes that subsidize their employees’ purchase of insurance. The law mandated minimum terms and benefits of insurance policies, regardless of what customers might want or not want, and it gave the government regulatory power to define and expand those terms.
For debatable reasons, the Department of Health and Human Services decided that all acceptable policies should cover contraception and sterilization, free of deductibles and co-payments normally required for most other health services. Congress never said that specifically; it was the department’s rule.
Many corporations now are suing the department, claiming that the requirement goes beyond the department’s authority or infringes the corporations’ religious freedom. Last week, the Supreme Court decided the first such cases, brought by Hobby Lobby and Conestoga Wood Specialties. The owners of those companies were already buying insurance that provided for some types of contraception, but not others that the owners considered equivalent to abortion—which they oppose on religious grounds.
Writing for the majority in the 5-4 decision, Justice Samuel Alito accepted the idea that forcing the two closely held companies to provide insurance on these terms violates the owners’ religious liberty, as protected by Congress in a 1993 law, and, of course, as protected broadly in the First Amendment.
Alito decided the cases narrowly. The decision doesn’t apply to public companies, and it applies only to the contraceptives that the two plaintiffs abhor. But he waffled in discussing what might come next: The decision “should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs.” Nor must a mandate stand: Other requirements, such as mandatory coverage of immunizations, may have important public health benefits that may overcome objections based on religious freedom, Alito said.
This decision is the first of hundreds of court rulings that will be needed to define, limit, and expand the powers of the government that were created by the Affordable Care Act. At this point, nobody knows what’s in it—not people who have read the act, not people who wrote the act, not people who wrote the regulations and not even the judges who will interpret it.