So it looks like I need the bit of help from an attorney here to resolve a dispute. Nothing serious, just a difference of opinion. Conservatives, particularly the twittery kind, are consistently arguing that Hobby Lobby is really no big deal because it only affects 4 Birth Control Methods (Plan B, Ella and two version of the IUD) rather than the entirely of all methods.
I think that's wrong.
This is why (from the Majority Opinion)
Held: As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA.
...
Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.
* * *
The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.
From this fairly simple language it seems to me that the HHS reguatlion as we know as the "Contraceptive Mandate" is no longer valid. It doesn't exist anymore for "closely-held companies". That's what they said, so I assume that's what they mean. And if there is no mandate (for these companies), then there is no protection or requirement to supply
any contraceptive care without a co-pay for anyone who
might assert the right to be exempt. That means the Pill, that means Condoms, and of course it means Plan B and Ella. At least for now.
Conservatives disagree and think Liberals are Lying about it all.
So am I a dumb layman whose incapable of understanding a legal opinion, or is this the case?
it is a bit interesting that Conservos are doing all this minimalization of the issue because if the SCOTUS had said in 2012 that "The Individual Mandate is Unlawful" they would be all over that Shit and Dancing in the Streets about it, not arguing for loopholes and exceptions in it.
"Well, it's not the whole mandate - just a part of it". Yep, that would happen.
Now after a bunch of back and forth I eventually dragged out the core gist of the Conservative argument. It doesn't matter what the Supreme Court literally said, in English, what matters is the interpretation based on the core of the complaint made by Hobby Lobby which was only about the four "abortifacients" (even though they aren't "abortifacients") that they "sincerely" felt were "religiously intolerable". [But not so "intolerable" that they would divest in "abortiafacient" companies in their 401(k) plan, however i digress]
According to them "Lawyers are trained" to deferentiate the Holdings from the Dicta (although the statements are consistent in both here) and to understand that the circumstances of the complaint are more important that what the SCOTUS actually says in their ruling opinion in plain language.
Uh huh, ok.
At least that's how I look at what they've told me because I don't see anywhere in the decision where the SCOTUS claims that the mandate is still in place for "closely held companies" when it comes to all methods of contraception except the four which were objected to by Hobby Lobby. That exact language isn't present, but I'm supposed ignore that fact and simply infer that because Hobby Lobby only complained about 4 methods (and also all the associated education and consultation that comes with them) that when the SCOTUS says "The Contraceptive Mandate is Unlawful" they're just kidding and don't really mean it. They mean part of it, and you're supposed to guess which part they really mean.
Sure. I simply must be dumb to not get that.
The majority opinion spent some time rebutting the claims of the dissent that the scope of this decisions was far beyond simply the issue of contraceptives. They argued that it wouldn't impact "blood transfusions" for Jehova's Witnesses and it wouldn't affect people like Christian Scientists who religiously object to the any medical treatments at all.
They spent time shooting all those possibilities down.
But my point is that during that rebuttal they didn't spend any time to argue for the need to bifricate the mandate into two portions, one that includes the Pill, and another that doesn't include the Pill which requires each employee to foot the bill for Plan B or Ella out of their own pocket.
They offered a completely different solution - one which they claim already exists - rather than that which Conservatives have embraced.
Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would. Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.
This suggest solution is for
all the mandate, not some if it. And also see where it says - "All FDA-Approved contraceptives". Also "Cost-free".
They did NOT put forth the idea that people like Jonah Goldberg have that the cost of these "elective", 'recreational" methods need to be handled entirely out of pocket for Hobby Lobby employees. They said it should be paid for by other means.
And more the SCOTUS insisted that this method be used, in fact, it's a key reason they say that they ruled the way that they ruled.
In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious non-profit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage. Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections.
Uh, cuz perchance they thought that very idea was
Derp!.
We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.
Let me repeat yet again "
Enforcement of the HHS Contraceptive Mandate against the objecting parties in these cases is unlawful" - it simply does not say "Enforcement of the PART OF THE MANDATE THAT HOBBY LOBBY DOESN'T LIKE is Unlawful, but the rest of the mandate that they DO LIKE is just fine and honkey dory, so please proceed as you will HHS, carry on..."
The SCOTUS argued that since HHS didn't use the "least restrictive method" by offering the same deal to "Religious for-profit companies" that they offered to Churches and Non-Profits they found the "Contraceptive Mandate" (again, not parts of it - all of it) unlawful for those who object to it.
They didn't say this once, they said it multiple times. And here's the thing if someone can get out of a "mandate" by simply crying "uncle" - it's not a mandate, it's more of healthy suggestion.
You Have to do THIS.
No we don't.
Ok, fine, sure, no you don't. Never mind.
But here's the thing, Conservatives continue to believe that all this decision has done is allow Hobby Lobby to craft some "special" new plan that still covers the Pill, but doesn't cover Plan B.
The problem with this idea is that in the last five days it's simply not possible for Hobby Lobby to have cancelled and replaced every employee health plan they have with a new plan that includes 16 of the 20 approved FDA contraception methods, but not the offending 4.
Exactly who is offering that plan anyway?
Everyone who is currently enrolled in employee healthcare will have that plan until the end of the year and a new open enrollment period begins. All current plans, except those that were "grandfathered" include the full contraceptive mandate. [And Hobby Lobby specifically let their grandfathered plans lapse, because they wanted to take advantage of some of the features of the NEW plans] So yes, current Hobby Lobby employees get coverage for the pill without a co-pay, but as of now they get everything else too until Hobby Lobby either changes providers and/or those providers offer a new set of plans that are customized to be "Hobby Lobby Friendly".
But then we're talking about a company that only has 14,000 employees today spread across several different states and what truly is the incentive for an insurer to create a whole new set of plans for a pool of customers that small which have everything else but doesn't include the "Fatal Four" methods?
Talk about Micro-Targeting.
How is that supposed to work out financial for the providers? I don't really see that as viable. Does anyone else?
And then again, why should they even bother to be so specific? If as i believe, the mandate is functionally Kaput and unenforceable for any of the organizations that choose to complain until HHS offers them an alternative (which would still provide the full 20 FDA approved methods per SCOTUS specific requirements) why wouldn't these insurers instead choose to expand the pool of customers for these plans by including all contraceptive methods in the exception instead of just four since as we all know there are another 50 cases involving 71 different companies pending which don't focus on just the final four at all, but the entire list?
Until HHS crafts a new Hobby Lobby friendly rule which includes the suggested accommodation, IMO they can't meaningfully enforce the mandate and also insurers can't reasonably craft a new set of benefits that will be reliably "lawful".
Everyone and everything is stuck in limbo, including the guarantee of all 20 types of contraceptive coverage.
And if either Congress or HHS doesn't issue a new version of the contraceptive rules - do the insurers essentially make it up on the fly once open enrollment comes around again in October/November? As it stand now without a new rule If insurers feel like offering contraceptives - any of them - they can, or they can decide to skip it until HHS says otherwise in a way that won't violate the HL ruling. It's catch as catch can, like it used to be.
So I submit, the mandate - as of now - is functionally dead until HHS finds a way to bring it back to life with some kind of exception that will work within the SCOTUS's new Hobby Lobby parameters. To make it for only the four offending plans to be handled through alternative means might technically satisfy SCOTUS just barely - even if they didn't specifically ask for that - but it wouldn't handle all the other cases which are pending. Why go halfass on it - or rather just 1/4th ass - and not try to solve all the cases at once in a single simple rule that could cover all the non-profits and for-profits who object alike?
So whose right, Me or the Conservatives?
Vyan
11:57 AM PT: And then there's the issue - as mentioned in the comments - that the accomodation prescribed by SCOTUS isn't working all that well for insurers bottom line and as a result NO ONE may be able to offer the "Hobby Lobby Option".
http://www.garp.org/...
July 1 (Bloomberg) -- The U.S. Supreme Court’s suggested work-around to provide and pay for employees’ birth-control coverage at businesses whose owners have religious objections hasn’t worked in practice, say the companies administering it
“If that is the accommodation the administration chooses, then it would create the same problems, in our view, that are currently in play for the nonprofit religious organizations,” Ferguson said. His Greenville, South Carolina, trade association represents insurance administrators and their clients.
It’s a complex solution that hasn’t worked in the real world, said the third-party administrators, or TPAs, providing the birth-control benefit, because the government hasn’t figured out how to pay them back.
Dropped Clients
Without a solution, the benefits administrators may ultimately choose to drop clients with religious objections to covering birth control, Ferguson said. Nonprofits and businesses with religious owners that refuse to cover the benefit would have to change the way they provide health benefits as a result, adding to disruptions from the health-care law.
So now we're not just talking about losing birth control coverage we're talking about those with religious objections losing
all their coverage because plan administrators would consider them too expensive to offer.
Of course Congress could provide the money and the reimbursement for TPA's, except that - ha... hah.. THIS CONGRESS? ... hahahahaaaa!!!
Yeah, right what was I thinking.
12:28 PM PT: I've been made aware in comments that Hobby Lobby is self-insured. So that means that since SCOTUS suggested (required) that Hobby Lobby's insurer would have to pay for "all FDA Approved methods", instead of Hobby Lobby paying the bill, then basically Hobby Lobby (and/or their Plan Administrator) are going to have to pay for it. Yeah, Free-dumb!