I agree with Elizabeth Stoker’s take that the Hobby Lobby contraception stuff is really confused. Ostensibly, Hobby Lobby is objecting to having to “pay” for the contraception coverage of its employees. This is contrasted with other forms of financing contraception, which we are told by those who argue on behalf of Hobby Lobby are permissible. But, as I’ve detailed many times before, these sorts of procedural objections to types of financing never really shake out to make much sense.
The initial confusion at the core of all of these types of discussions is that they try to somehow attach money to a person or entity (here Hobby Lobby) and then object to having people spend “their money” on this or that thing. Right off the bat, it is a totally random choice to describe something like the contraception mandate as requiring Hobby Lobby to spend “their money.” What makes the money theirs? It is the laws that determine what money belongs to what people, as far as I can tell. When the law says that some increment of money must be transferred to some other entity and that you have no choice over the matter, I interpret that as the law pretty straightforwardly saying that money does not belong to you.
Pick Your Process
The interpretive arbitrariness involved in determining whose money it is and who is “paying” for the contraception is just the beginning of the silliness. It gets even more arbitrary than that. Consider the following six scenarios, a few of which come from Stoker’s piece:
- Hobby Lobby –> Drug Store. Hobby Lobby transfers money to a drug store when an employee gets contraception from the drug store.
- Hobby Lobby –> Insurer –> Drug Store. Hobby Lobby transfers money to an insurer. The insurer transfers money to a drug store when a policyholder gets contraception from the drug store.
- Hobby Lobby –> Government –> Drug Store. Hobby Lobby transfers money to the government via a tax. The government is the national health insurer. The government transfers money to a drug store when a policyholder gets contraception from the drug store.
- Hobby Lobby –> Government –> Insurer –> Drug Store. Hobby Lobby transfers money to the government via a tax. The government transfers it to a private health insurer. The insurer transfers money to a drug store when a policyholder gets contraception from the drug store.
- Hobby Lobby –> Employee –> Drug Store. Hobby Lobby transfers money to an employee. The employee transfers money to a drug store when the employee gets contraception from the drug store.
- Hobby Lobby –> Government –> Employee –> Drug Store. Hobby Lobby transfers money to the government. The government transfers money to the employee (e.g. through the Earned Income Tax Credit or Child Tax Credit). The employee transfers money to a drug store when the employee gets contraception from the drug store.
If you believe the religious liberty people, they think a law that requires (1) or (2) is impermissible, but they think a law that requires (3), (4), (5), or (6) is permissible. Is anyone going to seriously maintain that there are meaningful differences between these things? In all cases, money that originates at Hobby Lobby terminates at a Drug Store when an employee chooses to trigger a contraception purchase. The rest is procedural tedium, details of how we have set up our distributive system.
In fact, if the religious liberty people are serious here, we could easily resolve this whole kerfuffle by moving from (2) to (4). We could leave everything exactly as it currently is, but when you have a company like Hobby Lobby, just set up a government bank account that sits in between the bank account of Hobby Lobby and the bank account of the insurer. That way, when Hobby Lobby “pays,” the money is routed through the government bank account, which, for some reason, sanitizes the money of Hobby Lobby’s imprint.
Implement this Middleman Fix as I would call it through the tax code, call it a tax, and all is well. Nothing would actually change about anyone’s lived life, of course, but the processes and administrative tedium would turn the religious liberty infringement into a non-infringement, according to what I keep reading.
What About Free Contraception Coverage?
In other cases involving actual religious organizations, the Obama administration hit upon a hilarious way to circumvent the religious liberty tedium. They declared that if a religious organization objects specifically to having to buy “contraception coverage,” that’s fine. It wont have to get an insurance policy that covers contraception. However, the insurer they use would have to, in a way procedurally and administratively separate from the contraception policy, offer contraception coverage to a covered employee for free.
This sets up a sanitizing wall, it seems. But the religious liberty people object to that. Why? Most of the objections I read at the time amounted to observing that actually the religious organization is still paying for the contraception because their money is going into the insurance pool that pays for it. But, as Stoker points out, that’s true so long as the insurer covers the contraception of anyone, including people covered by other employers and such. But more than that, this is true of (3) and (4) in the list above, which the religious liberty people claim to be OK with.
Although they would be reaching towards the absurd, you could almost see a religious liberty person here saying that there is just something really important about their money being actuarially tied contraception coverage. But even that most absurd of procedural arguments wouldn’t help them articulate their objection to this particular fix because the actuarial costs to an insurer of giving out free contraception to someone who also has pregnancy coverage is zero (or at least thereabouts).
This is to say: the religious organization would pay identical premiums for the contraception-free insurance coverage whether the insurer was forced on the back end to give out free contraception coverage or not. In what meaningful respect, then, is the insurer “paying” for contraception in ways that doesn’t also implicate (3) through (6) above, all of which we are told is not a problem.
Ultimately, we could actually blow by all of this procedurally. The wonders of our modern monetary system allow us to do some crazy things that can really spin your head once you learn about them.
For instance, one thing you could do is never spend any tax money on anything. It is totally possible (although perhaps not advisable) to finance all fiscal policy with dollars printed by the Federal Reserve. This would include paying for contraception and even paying for abortions (which is something that we are not supposed to do with “taxpayers” money, suggesting that (3) is procedurally impermissible for abortion, though not for contraception — figure that one out). Financing all fiscal policy with printed dollars would cause inflation when the economy is operating at capacity, but the government could offset that by taxing people an amount equal to the printed dollars it spent and then taking the money it taxed and destroying it.
Through this money-printing work around, you could literally simulate every single one of the six processes above, including the process where you make Hobby Lobby transfer money to insurers that provide contraception coverage. All you would have to do is print dollars and give them to all of the insurance companies to cover contraception, and then to offset the inflation caused by that money-financed spending, tax companies (e.g. Hobby Lobby) an amount equal to the printed money you spent on contraception for their employees, and then of course destroy that money.
Would this be permissible then? If we did: Print Money –> Give to Insurer || Tax Hobby Lobby –> Destroy the Revenue? This would mean the money never initiates from Hobby Lobby procedurally. This would therefore be even better than the six processes above in terms of sanitizing Hobby Lobby, though it would feel almost identical to the exact same process Hobby Lobby has sued over.
This is why I think Stoker’s argument about power is most plausible. There is just no way anyone could walk into that absurdist pit of process I described above and come out with some principled position on which process is religious-liberty-infringing and which isn’t. The fact that the Hobby Lobby defenders claim that some of those processes are legit and some aren’t is utterly tortured. What is more likely is that, in the world with the political and social norms that we have, the process Hobby Lobby is complaining about is the only one in which it has some plausible ability to exert its power to create the kind of world it wants to see. And so it is doing that.