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Statutory Rights Are Not A Luxury Good


Megan McArdle believes she has a gotcha with respect to yesterday’s egregious Hobby Lobby decision:

Logically, this is incoherent, unless you actually believe that it is impossible to buy birth control without a side payment from your employer. (If you are under this tragic misimpression, then be of good cheer! Generic birth control pills are available from the drugstore for about $25 a month.)

Otherwise, according to the reasoning of that tweet, I am being denied something every time my employer refuses to buy it for me: cars, homes, Hummel collectible figurines. And don’t I have a First Amendment right to express my love of round-faced Bavarian children doing adorable things?

The answer is that yes, of course, I have a right to buy Hummel figurines, or automobiles, or a slightly-falling-apart row house within convenient walking distance of the Capitol. But that does not mean that the government should compel my employer to purchase them for me, particularly if my employer is a rabid environmentalist who thinks that everyone should bike to work. Why is birth control different?

Let’s leave aside McArdle’s assumptions that 1)if $25 a month is no big deal for her it’s no big deal for anyone and 2)that birth control bills are equally as effective as more expensive IUDs and get to the real howler. Oddly, McArdle seems to think that she’s posing a rhetorical question in her last sentence. But there’s a perfectly obvious response. Your employer does not receive any tax benefits for compensating you with Hummel figurines or automobiles instead of wages. It does, however, get tax benefits for compensating you with health insurance instead of wages. (It would be nice if health insurance were decoupled from employment entirely, but needless to say this isn’t the alternative preferred by conservatives like McArdle.) Because of this, the insurance provided in lieu of wages actually has to cover things. After the ACA was enacted, contraception for women became one of those things. Women compensated by employers, in other words, have a statutory right to have contraception covered if they choose to use it. This is not, as McArdle suggests, a “side payment.” It’s part of an employee’s compensation package. What Hobby Lobby wants is to pocket the tax benefits for compensating their employees in health insurance but not to provide the full benefits to their female employees. (Mr. Plow remains very influential among contemporary Republicans.)

So, in other words, critics of the decision are correct to note that yesterday’s opinion denies employees something they’re entitled to. Does McArdle have any defense for the Court’s proposition that Congress intended any bare assertion of religious conflict to trigger strict scrutiny for every federal regulation? Of course not; the decision reaches a pro-employer, anti-employee outcome that feels right to her, and that’s good enough. (She actually seems to think that this was a 1st Amendment rather than a statutory case, although this isn’t entirely clear.) And, in fairness, since that was also good enough for the Court I’m not sure why she should bother actually mounting a defense of the opinion.

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