Sorry, TNR, But Coaxing Single Payer Victory Out of Hobby Lobby Defeat Doesn’t Work

The New Republic’s Jonathan Cohn has an
interesting post up arguing that the Supreme Court’s Hobby
Lobby ruling suggests that the way to deal with the constitutional
and ethical issues raised by Obamacare’s contraceptive mandate is
to implement — this will come as a complete
surprise to H&R readers so wait for it — single payer!

He notes:

The fundamental problem here is the way the U.S. has decided to
provide its new entitlement to health insurance. In many
other countries, the government takes on this responsibility
directly, by creating its own insurance program or regulating
insurers as if they were public utilities…

Health care is full of decisions that raise complicated ethical
questions on which, inevitably, religious beliefs can dictate
certain views. It’s not just whether to use certain forms of
contraception. It’s also whether to use stem cell therapy, how to
treat the end of life, and whether to take blood transfusions. The
question is not whether the owners of closely owned corporation
have a right to their religious views. Of course they do. The
question is whether those views should affect the provision of a
public program, enacted in part to promote public health
as defined by public health professionals…

It’s worth remembering that, strictly speaking, the Obamacare
mandate doesn’t “force” employers to pay directly for coverage of
contraception or any other medical service. The law simply requires
that employers bear the burden of medical expenses, broadly
defined. They can do so by paying a fee to the government or, if
they choose, they can decide to provide insurance on their own. The
only caveat is that, if they decide they want to provide insurance,
the policies must conform to certain regulations—among them,
coverage of so-called essential benefits. And the federal
government, relying on the (very sound) judgment of public health
professionals, has decided that contraception belongs to that
list.

The obvious solution to this dilemma is to take health insurance
away from employers altogether… And, over the long run, it’s easy
enough to imagine a world in which employers were truly out of the
health insurance business altogether—a world in which all people
got health insurance directly from the government or tightly
regulated insurers.

(Emphasis added.)

A few thoughts.

One: By calling Obamacare a “new entitlement” and a “public
program” he has basically accepted that the program constitutes a
de facto government takeover of one-sixth of the economy, a
conclusion that liberals have generally resisted. Leftists, notes
Cato Institute’s Michael Cannon, have been trying to convince
Americans that Obamacare is not a step in the direction of
socialized medicine as opponents claim because it uses private
insurance and relies on market forces to deliver coverage. Cohn’s
candor is both refreshing and clarifying, so thanks, Jonathan, for
that.

Two: Cohn claims that Obamacare offers employers a choice to
provide contraceptive coverage: Either spring for employee
insurance that includes all the 20 FDA-approved contraceptives (as
opposed to only the 16 that were consistent with Hobby Lobby’s
religious tenets) or hand the money over to the government to
purchase such coverage.

This is bizarre because he is basically inviting even more
employers to dump their employees on to Obamacare’s exchanges,
turning President Obama’s promise that “anyone who likes their
current insurance can keep it” into even
more of a lie.

Furthermore, the Religious Freedom Restoration Act says that the
government has to achieve its ends in a way that least burdens
religious rights. Cohn is saying because Obamacare gives employers
an option to offer contraceptive coverage or pay the government to
do so, it is, strictly speaking, not a mandate. OK. Call it a
regulation. Or a Buddhist chant. Or whatever. But would re-defining
the mandate as something else satisfy RFRA’s stipulation?

I don’t think so. The mandate, as Justice Alito noted in his
ruling, would have cost Hobby Lobby $475 million in fines.
 And what would Cohn’s regulatory option cost?  According
to Kaiser Health News, roughly $26 million in penalties. But this
does not include the health care tax exemption that Hobby Lobby
would lose — putting it at a considerable disadvantage vis-à-vis
its non-religious competitors.

To paraphrase Justice Alito, if this doesn’t burden religious
rights, then what does, especially when there is at least one less
intrusive way: Make oral contraceptives available over the counter,
as I previously argued
here?

Three: Cohn contends that replacing Obamacare and its reliance
on employer-sponsored coverage toward a Medicare-style single-payer
system would avoid such knotty constitutional and ethical issues.
Perhaps.

But so would fixing our idiotic tax code and handing individuals
who pay out-of-pocket for coverage the same tax exemptions as their
employers. Individuals would be able to buy their own coverage with
their own money as per their own religious convictions without
forcing anyone to violate theirs. This still doesn’t preclude libs
from playing their brother’s keeper — as Cohn says we all should be
doing — and demanding generous subsidies for those for whom the tax
credits alone don’t get “acceptable” coverage.

But giving patients some modicum of control of their health care
dollars would also unleash market forces to lower soaring costs
without resorting to price controls or rationing (and the first one
who says
markets ration too — just by price — will have to pay for my
nose job!) or
lopping off five years from the life of cancer patients or
creating a giant Rube Goldberg contraption to manage all the
perverse incentives of single-payer.

I understand — though disagree — with the liberal end of
universal coverage. But what I’ve never understood is why they want
to employ the least efficient and most heavy-handed means that
violate the Constitution and erode freedoms to achieve it.

(For more on “repealing and replacing” Obamacare with a free
market system that contains tax parity for individuals, deals with
the pre-existing condition issue and other liberal objections, read
this excellent National Journal
piece by Jim Capretta and Robert Moffit.)