EXCERPT: Finding a reasonable way out of this case wont be easy. The litany of bad outcomes has some legal scholars rooting for what might be called the Lederman solution—a punt. Georgetown law professor Martin Lederman has suggested that the lower courts have misread the contraceptive-mandate cases by assuming firms such as Hobby Lobby have only two choices: provide birth control coverage or pay huge fines to avoid violating their religious beliefs. He argues that while the ACA requires individuals to purchase health insurance, it doesnt require employers to provide it. If companies choose to do so then the insurance companies must cover contraception without co-pays. Hobby Lobby and the other companies currently suing the Obama administration can resolve their problems by simply jettisoning their health insurance plans and letting their employees purchase coverage through the exchanges. An employer that drops its health plan would have to pay a tax to help subsidize its employees coverage obtained through the exchange or Medicaid, but this option is actually far cheaper than providing health insurance. And if a company doesnt even have to provide insurance, much less a plan that covers contraception, Hobby Lobby doesnt have much of a case that the ACA burdens its free exercise of religion. Ledermans analysis gives the court an easy out in Sebelius v. Hobby Lobby, allowing it to avoid the dicey questions of whether corporations have religious-freedom rights, whether scientific ignorance is a religious belief—or even whether the plaintiff is sincerely religious or simply part of a larger Republican-led political effort to kill off Obamacare.
Posted on: Sat, 22 Mar 2014 22:13:26 +0000
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