Hobby Lobby & Obamacare’s New “Baseline”

December 9th, 2013

I previously blogged about Joey Fishkin’s point that in the “Post-ACA world, Hobby Lobby is “acting partly on behalf of the federal government.” This is an important paradigm shift that we are living in the world after NFIB. Health insurance is no longer just a benefit, but an important aspect of our social welfare programs, in which employers are now mandated to participate. What was once a fringe benefit is now a necessity that can be regulated, much like a salary. (I am not addressing the RFRA or religious liberty issues, but am just addressing this from the perspective of federal power).

Nelson Tebbe, Richard Schragger, and Micah Schwartzman have a related post on Balkin about Hobby. They make a similar point, that in the post-NFIB world, there is a new “baseline.” We are no longer in the “normal state of affairs” that considers the relationship between the federal government and the individual, and the employer and the individual, as separate. Now, they are all interwoven.

In this post, we want to address one objection to that argument, namely that if religious employers are exempted from the mandate their employees will suffer no burden at all. According to this objection, employees have no right to health insurance that covers contraception in the first place. Therefore, when religious employers are relieved of the obligation to provide that coverage, employees suffer no burden whatsoever. They are simply put in the same position they were in before Obamacare: without coverage for contraception.
This objection presents a baseline question. If the normal state of affairs is that no one has contraception coverage, then denying that coverage imposes no burden (even if it is unfair). If, however, the baseline for comparison is a world in which everyone can legitimately expect affordable health insurance that includes contraception, then removing that coverage imposes a burden. Which is correct? We think that simply posing the question comes close to answering it.

This is the new world we live in.

 Today, after Obamacare, these employees have a statutory entitlement to affordable health insurance coverage that includes contraception. Creating the general entitlement was the point of the Affordable Care Act, and the government has defined the guarantee of preventative care to include contraception. As Joey Fishkin explained, the ACA uses a multi-pronged strategy to guarantee health insurance coverage to all Americans. Private employers like Hobby Lobby are an integral part of that strategy, which alters legal entitlements for everyone.
In this world, which we now occupy, denying contraceptive coverage only to employees at religiously-owned businesses creates a gap. Almost everyone else can expect contraception coverage, including people employed at exempt religiously-affiliated nonprofits (because the law provides alternative coverage for them). People who do not get health insurance from an employer can obtain subsidized coverage on an exchange, and it will include contraception.
I will reiterate that I do not think any of these issues are dispositive in Hobby Lobby, but these arguments could not have been made before the ACA changed things.
Update: Marc DeGirolami has some different thoughts about the new “baseline.”

T&S counter that the “baseline” for what is an extreme disregard for a secular interest has changed because Obamacare entitles employees to employer-paid contraception. In making this argument, they seem to adopt a claim made by Joey Fishkin that Obamacare makes employers like Hobby Lobby and Conestoga Wood into “federal agents.” Note that this claim would, if accepted, get around the third problem I noted above: namely, that the issues in Thornton and Texas Monthly only really relate to burdens imposed on secular interests by the state. If Hobby Lobby is also the state (or an agent of the state), then all private employers are agents of the state. So, at least in this context, you can extend the Thornton rule to all private corporations. Therefore, T&S claim, in this new “world which we now occupy” the burden is all the more severe on employees of religious corporations, because everybody else is now getting their contraception paid for.

But of course, as T&S acknowledge, it is a contestable question that the new dispensation that created this brand new world of private corporations that are government agents represents the current baseline. I suspect that many people would reject this description of the baseline. And even accepting a baseline of no-cost contraception for FDA approved products, is it really so clear that post-fertilization-contraception-products-only RFRA claims fall below the baseline, and so far below it to implicate burdens of constitutional gravity?

In fact, rather than talk of baselines, it seems to me that this is the heart of T&S’s claim: “At root, the constitutional conviction is that it is unfair and unconstitutional for the government to impose any substantial costs of a religious exemption on a focused and identifiable class of third parties.”