Job Lock and Hobby Lobby
If the justices seemed to have a consensus at the arguments today, it was this: Obamacare has an inherent paradox, and its not clear if the paradox is sufficient to deny citizens free exercise of religion. One of the supposed-features of Obamacare was the elimination of job lock, the ability of people not to be dependent on their jobs due to health insurance. The health exchanges were supposed to liberate people from the dead end jobs. At the same time, Obamacare put a burden on employers to make sure that everyone had health care. So, if health care is available to everyone on the exchanges, and possibly subsidized, where does Obamacare have the right to burden employers in their sincere religious practice when the same law provides a less burdensome alternative? The government didn’t seem to have an answer to that one. Except that this is another example of the notion that we’ll find out what is in the law later. Truth is, employers in general should not be involved in health decisions, and should not be involved in health insurance coverage. If people want to opt out of a company health insurance plan, they should be allowed to do so–for any reason. And if the employer wants a plan consistent with sincere religious practice, then it should not be compelled to provide coverage when the employer has an alternative for coverage. The government bungled the argument that health insurance is part of compensation and that employers can’t deny it. In fact, Obamacare has broken that thread, making insurance an entitlement, not a perq, and the employer a mandated provider, not a compensator. For all the argument, it was clear this morning that it was less burdensome for some employees to opt out of the Hobby Lobby plan and buy on the exchange than it is for a corporation to fund something contrary to corporate practices bases on religious conviction. This was less about abortion and birth control than most expected, and more about balancing of interests, and the fact that Obamacare itself provides a mechanism to protect the rights of both. In fact, it is possible that a chunk of Obamacare could fall away–the notion of the employer mandate sanction. If the Supreme Court is a logical place, Hobby Lobby won the day.