The Hobby Lobby Case Shows Why We Need a Single-payer Option

Customers walk into a Hobby Lobby Thursday, Nov. 1, 2012, in Dallas. An arts and craft supply chain that wants to block enfor
Customers walk into a Hobby Lobby Thursday, Nov. 1, 2012, in Dallas. An arts and craft supply chain that wants to block enforcement of part of a new health care law that requires employers to cover insurance costs for the morning-after pill and the week-after pill is heading to court. (AP Photo/Tony Gutierrez)

The outcome of the Hobby Lobby case demonstrates exactly why we need a public, single-payer health insurance option in the United States: Because relying on private parties to deliver a public good contradicts fundamental constitutional principles. (All page numbers below refer to the full opinion in the case, available here.)

This is not the first time this point has been made on these pages. When the issue was whether Congress could impose an individual mandate to obtain insurance, it was evident (I thought) that relying on private insurance companies and requiring individuals to engage in commercial transactions as a way to deliver public policy runs into constitutional problems. The analytically tortured maneuvers that Justice Kennedy relied on (the metaphysical "penalty"/"conditional tax" distinction) was the very antithesis of the kind of clear, publicly accessible, generalizable principle that a constitution is meant to provide. Now we have Hobby Lobby.

The case was not decided as a matter of the First Amendment; it was decided under a federal statute called the Religious Freedom Restoration Act that was adopted in 1993 in response to another Supreme Court case. Under RFRA, as it is known, a law that substantially burdens religious practice is invalid unless it serves a "compelling state interest" and is the "least restrictive means" to achieve its ends. Alito's majority opinion grants that the government has a "compelling interest" in securing the provision of contraception (p. 40), but that left the question of whether there are "less restrictive" means to achieve that purpose. The answer to that question is simple. "The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections." (p. 41)

Alito is exactly right, but not only for the reason he cites. The problematic nature of the ACA is not that it happened to be subject to religious objections by business owners. The truly problematic nature of the law is that our Constitution is designed to separate public purposes from private liberties, not hold one hostage to the other.

The need to balance religious burdens against what the majority agrees is a "compelling" public interest, the need to accept the assertion that a company that willingly provided contraceptive coverage prior to the ACA has suddenly discovered religious objections, the need to turn the idea of "religious liberty" into a weapon to be deployed against the goals of equality and public health -- all of this only arises because we choose to use private actors to deliver public policy goods. It's no different from privatizing a prison or privatizing highways. The Constitution exists to empower the government to promote the public good and to prevent the government from infringing on individuals' liberties in the process. (Since the XIVth Amendment these constitutional principles apply to States just as much as to the national government.) That balancing of purposes goes haywire when we try to use private corporate actors as agents of government policy.

It's not just the obviousness of the "less restrictive means" argument, though, that shows us the point. The more dangerous, more insidious, and frankly stranger element of Hobby Lobby has to do with the idea of what might be called private science. The religious objection to the four methods of contraception at issue is that they may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. (8) The Obama administration did not contest this point in its briefs. Which is remarkable, in a way, given that no less an organization than the American Association of Pro-Lofe Ob-Gyns has concluded that "there is no direct evidence in the literature" in support of that claim.

This is deeply troubling territory. Are we going to say that the government has the authority to tell religious individuals or groups that their beliefs about the significance of an action or subject are simply wrong? "Young earth Creationists are not entitled to a religious exemption from public education requirements because there is a compelling state interest in education" is one thing. "Young earth Creationists are not entitled to a religious exemption from public education requirements because they are wrong" is something else entirely. Public policy needs to be based on empirical evidence, not religious belief. By the same token, public policy cannot dictate religious belief. In a very profound sense this is what the separation of Church and State is all about. But you can't have that separation if you insist that private, religiously believing individuals are required to carry out public policy.

That's the real point that Justice Alito got right, even if he got there by accident. A single payer option is not just a less constitutionally restrictive means of providing public good, it is the only approach that is ultimately consistent with our dual constitutional commitments to a government empowered to pursue the common good and individuals shielded from interference in the expression of their religious commitments.