Thursday, July 03, 2014

"....makes the world go around...."

Last in a series, I promise; at this point I'm just cleaning off the desk, so to speak.

I'm still ruminating on this, but it strikes me that the issue here (in Burwell) is the question of agency*:  at what point is my money no longer "my money," and the use of it no longer under my control, or even my responsibility?

An employer provides insurance as an employment benefit, which means it is no different than the agreed upon salary the employee accepts to do the job.  By offering insurance, the employer agrees to pay for that insurance as a part of the employee's compensation, just as the employer agrees to pay a wage on a set schedule.  Indeed, in Texas, if an employer does not pay on the agreed schedule that employer is in violation of state law.  The property interest of the employee in at least their wages is protected by law.  And, of course, the use of those wages by the employee (provided the use is legal) is left entirely to the employee.

The government says that the insurance policy so provided cannot be worthless, that it must make certain basic provisions.  It does not dictate the size of the deductible, for example, but it does dictate what will be covered so all have basic medical care available to them.  Of course, given the expense of healthcare it could legitimately be a moral issue as to whether an insurance deductible is fair, or not (because a high deductible can still effectively exclude you from some healthcare.  I just bought some relatively inexpensive drugs which, were it not for the program at my pharmacy reducing the cost to $20.00, would have cost me $140.00.  I have a deductible I never reach because aside from two minor chronic health issues controlled by generic drugs, I don't spend enough on healthcare in any one year.  If not for that pharmacy program, I might find my healthcare far more expensive, and if I were a bit poorer....)

Now comes Hobby Lobby, which objects that the insurance policy it buys means the insurance company must provide coverage for contraceptive care to the insured.  The money leaves Hobby Lobby, goes to the insurance company, and MAY be used to buy contraceptives (it doesn't have to be, of course), and Hobby Lobby says that's a violation of its religious feelings.

Okay, the money leaves the employers hands and goes directly to the employee, who uses it to buy alcohol, which may also be a violation of the employer's religious feelings.  Or, more to the point, the employee MAY buy alcohol with that money.  In either case we tell the employer:  tough.  It's no longer your money.

Why is it still the employer's money when it gets to the insurance company?**

*Not that the majority opinion wanted to address that issue in any way, shape, or form.  They clearly and tacitly left all questions of agency in the hands of the corporate owners, and allowed for no autonomy of the employees, who can make their own decisions about whether or not to use contraceptives.  The Court might as well have complained that Hobby Lobby exists in a world where contraceptives are available and where employees might purchase such things with the money Hobby Lobby "gives" them (because compensation belongs to the employer even after it is earned, in the logic of the majority opinion).

**The answer is:  because this case is not about contraceptives or religious beliefs, or even about money.  It is about opposition to the ACA.  If there is a moral issue with contraceptives, there isn't a valid legal one:

Today's opinion reflects not a principled judgment about the meaning of RFRA but the Republican majority's policy opposition to the ACA, and its failure to take the rights and interests of the women employees affected by its decision seriously. That these justices may not apply the same logic when the mandate is for something other than contraception isn't much of a defense of their holding.  

And that it isn't about "religious beliefs" is clear from the special privilege religious beliefs held by the owners of closely-held corporations suddenly get at law, a privilege offered to no other group in America:

I agree that on the question of whether there is any conflict between religious practice and a statute, the courts should be deferential to an individual’s characterization of their beliefs. The legal standard, however, is not whether there is “any” conflict. It’s whether there is a substantial conflict. Courts do not have to be deferential on this question, and indeed since the finding of a substantial burden triggers the rare use of heightened scrutiny they can’t be deferential.  And for the reasons Edwards explains, this is pretty much the definition of a de minimis burden: the Gilardis are not required to use contraception, required to promote the use of contraception, or denied the right to publicly oppose the use of contraception. Being required to offer insurance plans that cover contraception may constitute a burden, but it’s not the “substantial” one Sherbert requires. In Sherbert and Yoder, there was a clear, direct burden involved, not an incidental one.

The idea that an irrefutable bare assertion of conflict with religious belief, no matter how trivial, is sufficient to make any state action subject to strict scrutiny is absurd. It’s an obviously unworkable standard, it’s not what the Court said in Sherbert, and it’s not the policy enacted by Congress, which also requires a “substantial” burden. The backdoor attempt to subject all regulations to strict scrutiny does, however, show what’s going on here: this case is about opposition to the ACA, not religious freedom.

1 comment:

  1. My university has a practice of defraying costs for faculty travel to conferences under certain circumstances (for example to present your research). In general, the university re-imburses you for money you have spent, but, under certain circumstances, it can pay for conference costs (including room and board) ahead of time, so, just like with health insurance, the university pays for a benefit for you rather than paying you directly.

    My dean is Jewish, as am I. Could my dean say that he will not sign the form for the university to pay my way at a conference unless I eat only kosher food? As a Jew, he presumably believes that us Jews should eat only kosher food. Therefore, would it be a burden to his religious practice to expect him to ok money being spent to buy non-kosher food for Jewish faculty members?