Barry Fagin, Featured, Health Care, Obamacare

Hobby Lobby decision makes case for more health care freedom

The Supreme Court has issued its ruling in Burwell v. Hobby Lobby. I wrote about this case when it was argued and am pleased to report that the Supreme Court, in its Supreme Wisdom, agreed with me. Closely held for-profit companies can in fact claim religious exemptions from a law, if there are other ways for the law to accomplish its goal.
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Despite the howls of anguish from the easily angered left, the sky is not falling. It’s a narrow ruling that interprets an existing law.

icon_op_edThe law in question is the Religious Freedom Restoration Act of 1993, which requires any laws that substantially burden a person’s exercise of religion to be narrowly tailored and undergo strict scrutiny. The court ruled that the Obamacare birth control mandate failed that test, and therefore violated the RFRA.

And who was responsible for RFRA? It passed by huge majorities in both houses of Congress. Ted Kennedy was a sponsor, Bill Clinton signed it into law. Last I checked, neither of them were right-wing crazies. In fact, the whole purpose of the law was to reverse a Supreme Court ruling that laws that burdened religion were constitutional as long as they didn’t discriminate against the religious. The author of that ruling? Justice Anton Scalia, a man not exactly known for his hostility toward people of faith.

But of course nobody knows or cares about the topsy-turvy history that got us to this point. We just know that all the justices on the majority were men, and all the women on the court were in the minority. So it must be an issue of religious rights versus civil liberties or some similar ideological conflict. What nonsense.

The real problem is that we live in a world where health insurance depends on who you work for, where people think it’s just fine to tell corporations and employees what their economic arrangements should be, and where people don’t think twice about trampling other people’s rights to achieve social goals.

The only reason health insurance is provided through employers is, like so many bad decisions, a combination of historical accident and lousy policy. Back in WWII, President Roosevelt imposed wage and price controls. In response, firms began offering health insurance so they could attract workers.

Then in the 1950s the IRS ruled that health insurance wasn’t taxable. This meant people who bought their own health insurance were at a big disadvantage compared to people who got it through their job. So everybody got health insurance through their employer, and now that’s what we’re stuck with.

Nor does anyone think twice about government telling corporations and employees what form their benefit plans must take. Why isn’t that something people can work out for themselves? If we could mandate our way to prosperity by telling people what to do, wouldn’t we have figured it out by now?

Finally, if access to birth control is really so important, then why is it OK to make only some people pay for it? Aren’t there lots of other ways to achieve increased access to contraception? Offer a tax credit? Subsidize it for the poor? Instead of making Hobby Lobby pay for it, why not make birth control legal without a prescription?

Contraception is safe, cheap, and effective, so why must women get a doctor’s permission to regulate how their ovaries function? In a just world, Planned Parenthood could act on the courage of its convictions by buying birth control and giving it away. After all, when it comes to acting on their conscience, liberals have that right too.

Unfortunately, we’ll continue to have these long, drawn-out squabbles over allegedly conflicting rights as long as we fail to understand the history that got us where we are. Instead of asking “Can we solve this problem with more laws?”, why not ask “Can we solve this problem with more freedom?”. More often than not, we’ll find the answer is “yes.”

Barry Fagin is a senior fellow at the Independence Institute, a free market think tank in Denver.  Contact him at


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