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The Hobby Lobby case should never have happened
ObamaCare has failed to reconcile the tensions in our employer-based health care system. It's time to have a real debate about the issue.
 
Your boss really shouldn't be involved. 
Your boss really shouldn't be involved.  (Chip Somodevilla/Getty Images)

The Hobby Lobby case pitted two cherished American principles against each other. One was the free exercise of religion, as expressed in the Religious Freedom Restoration Act. The other was access to contraception, embodied in the Supreme Court's Griswold decision from the 1960s, and in the regulations issuing from the Department of Health and Human Services.

But the only reason this conflict arose was a New Deal-era tax loophole that gave birth to our peculiar employer-based health care system. The main lesson of Hobby Lobby is that this system has to go.

That means Americans need to decide how health care goods and services are secured and paid for, whether in government expenditure or free markets. It may seem like an exhausting prospect after years of fighting about the Affordable Care Act, but we need another protracted debate if we are to avoid an endless series of needless cultural battles and logic-straining micromanagement.

A case like Hobby Lobby should never have happened. The principle that those so inclined should have access to all forms of birth control through their health insurance is perfectly harmonious with the principle that others do not have to be implicated in purchasing it. In its decision, the Supreme Court ruled in a way that essentially orders the federal government to find a workaround in this one instance. That probably means all contraceptives will be available co-pay free to Hobby Lobby employees, but not because Hobby Lobby actually went out and secured them. Shortly, the federal government will find that mechanism, and both sides should go away happy, for now.

But as Uwe Reinhardt says at The Upshot:

The ruling raises the question of why, uniquely in the industrialized world, Americans have for so long favored an arrangement in health insurance that endows their employers with the quasi-parental power to choose the options that employees may be granted in the market for health insurance. [The New York Times]

The answer is mostly inertia, and a paralyzing fear that any dramatic change will result in an irrevocable victory for the left or the right. If we move off the employer-based system into a free market scenario, the number of covered will drop, and the market will provide sham insurance to the least fortunate, thinks the left. The right fears that abandoning the current system will evaporate the few market pressures that keep health care costs competitive and promote innovation, resulting in the lines and government rationing of socialized care.

The Affordable Care Act simply did not resolve the contradictions and frustrations of our employer-based system. It may have only amplified them. Because the employer-based model makes individual insurance-purchasing more expensive, employers have tremendous power to determine the health insurance their employees are likely to get.

Even after the new regulations issuing from the ACA, employers can exclude dental coverage in their offered insurance plans, just because it makes fiduciary sense for them. Dental coverage doesn't call out our tribal culture-war loyalties and inspire hashtag fights on Twitter. Nonetheless, it is another instance in which the interests of employers and employees may not line up at all.

Consider this hypothetical: What if the government stupidly decided that food was best distributed as an employer-based benefit? Vegan employers might be forced to contract indirectly with abattoirs under a protein mandate. This would be an entirely unnecessary burden on the employer's conscience, one that I would oppose. Skirt steak or soy — that is #notmybossbusiness either.

These moral conflicts are easily avoidable when employers pay in cash. An employer pays a worker with wages. The moral responsibility for how that money is used now lies entirely with the worker. But in the Hobby Lobby case, much of the rhetorical battle has been about who really is "buying" the insurance. Should we consider it the employees' purchase, because it is part of their compensation, or the employers', because they sign on the dotted line and write the check? It's really both. And that's the problem.

There are other reasons to end employer-based insurance besides maintaining social peace and medical privacy. People should be able to move from job to job without gaps in coverage, or be able to quit a job and start their own company, or devote more time to their family without losing health care.

So that mean's having the big fight that we're all dreading. Ezra Klein has seen an uptick in interest among the left in a single-payer system in light of the Hobby Lobby decision, but he warns:

The assumption behind some of the Hobby Lobby-based arguments for single payer is that a single-payer system would cover contraception and that would mean everyone's insurance covers contraception. But a Republican-led government could decide that taxpayer dollars shouldn't be going to cover contraception at all, and then a single-payer system means no one's insurance covers contraception. [Vox]

He's right. While a government plan wouldn't inspire the stand-taking intensity of rhetoric and dire-sounding Supreme Court lawsuits by employers, it would still encourage petty wrangling. Perhaps this is why we shouldn't make political fights out of very specific types of care, or the specific lists of procedures, medicines, and devices and what their co-pay should be.

My own preference is to have a federally funded catastrophic insurance system complemented by a 50-state insurance market regulated enough to prevent predation, but unregulated enough so that Hobby Lobby's owners can find exactly the kind of coverage consonant with their conscience. So, too, the Sisters of the Poor, and so, too, everyone else who works for them, regardless of their beliefs and needs. They wouldn't even have to talk about it with their bosses, just as they don't have to talk about what they buy at a grocery store.

But we can only get that privacy and free choice if we shoulder up to the health care debate we should have had five, even 25 years ago.

 
Michael Brendan Dougherty is senior correspondent at TheWeek.com. He is the founder and editor of The Slurve, a newsletter about baseball. His work has appeared in The New York Times Magazine, ESPN Magazine, Slate and The American Conservative.

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