As with Shelby County, the claim that the insurance requirements in the ACA violate the Religious Freedom Restoration Act and/or the First Amendment contains multitudes of terrible arguments. I’ve focused on a couple — the obvious lack of a “substantial burden” on religious belief and the inapplicability of RFRA to secular corporations. But those are far from the only problems, and Marty Lederman has done some brilliant work enumerating them. In his contribution to the SOTUSBLOG forum, he makes two additional points. First, “[t]he plaintiffs in these cases are seeking a type of religious exemption that has virtually no precedent in the history of free exercise and RFRA adjudication.” And, second — and I plead guilty to using this erroneous term myself — the “contraception mandate” doesn’t actually exist:
Yes, the law does impose a legal requirement – many of them, in fact – on all health insurance plans. Nevertheless, contrary to common wisdom and popular rhetoric, there is no “employer mandate” to offer employee health plans, no matter how large the employer. Employers, both large and small, may lawfully decline to offer such plans. Indeed, the direct effect of doing so ordinarily would be a cost savings to the employer, which is why many employers will choose this option. And in such a case the employees will hardly be out of luck: They will then be able to purchase affordable health insurance on an exchange – with generous government subsidies, if necessary – and the insurance plans they purchase will meet all the applicable federal standards, including contraception coverage.
To be sure, many other employers will choose to continue offering employee plans, for a complex array of reasons, most of which are not a function of federal law. And I have argued (see my Balkinization Hobby Lobby posts III, III-A, III-B, and IX) that the Hobby Lobby and Conestoga Wood employers, in particular, have failed to plead facts sufficient to demonstrate that federal law imposes substantial pressure on them to decline that option – a pleading inadequacy that may be fatal to their RFRA claims. But whether I am right about that or not, it is still the case that if an employer does not wish to include all the incidents of insurance that federal law requires be included in all plans, its option is not nearly as draconian as having to reduce its workforce to fewer than fifty employees (a response that would not have the desired effect, in any event, because small employer plans must also include contraception coverage) or face bankrupting fines: It has the much less draconian legal option of increasing its employees’ wages in lieu of such insurance coverage . . . in which case the employees will be able to purchase an insurance plan that includes the same federally mandated minimum protections to which everyone else is entitled.
As with so many conservertarian arguments, this is an argument based on “freedom” that would result in a net diminution of freedom. The employers bringing the suits want the tax subsidy to compensate workers in health care rather than wages, but rather than meet the concomitant legal requirements they want to impose their religious beliefs on employees who don’t share them by denying them a benefit to which they’re legally entitled and giving them nothing in return. If they choose to, the can avoid the trivial burden on religious practice by simply compensating employees in wages instead.