A simple solution

There were several confounding issues argued Tuesday before the U.S. Supreme Court. They came in the case of Hobby Lobby and another company, Conestoga Wood Specialties, a cabinet-maker from Pennsylvania.

Fortunately, we actually don’t have to answer them.

Those companies want to be exempted from the Obamacare mandate to cover a morning-after birth-control pill and a couple of IUDs in their company health plans. That’s in the menu of required coverage items in women’s contraceptive health care.

The companies cite a right of corporate religious freedom. The owners of the firms deem those medications and devices to amount to sinful abortion.

Thus the tough questions, or some of them:

Does a corporation, already defined by the Supreme Court as a person for purposes of free speech, also possess First Amendment rights to religious freedom?

Would granting Hobby Lobby and the other firm this religious exemption threaten broader application of the exemption and more far-reaching consequences?

Could other corporations presume to resist a wide range of laws and regulations-on gay rights, safety,pollution, gender discrimination, sexual harassment, minimum wages-on the argument of religious liberty?

Isn’t a supposed right to disobey laws that are applied to others similarly situated a little more complicated than a right to make unfettered political contributions?

Regardless of whether those pills and devices amount to abortion, isn’t abortion legal in the early stages of pregnancy? How can a company opt out of complying with a law that mandates insurance for an array of procedures and services and medicines including a few that, even it amounting to abortion, are plainly defined by case law as legal?

Isn’t exempting Catholic organizations from certain contraceptive mandates one thing-a plainly religious thing-while it would be a rather different thing to exempt private corporations that exist not for religious aims, but commercial ones?

Could the Supreme Court exempt privately held family firms like Hobby Lobby, but not exempt publicly traded corporations, as Chief Justice John Roberts mulled during oral arguments?

Would it be fair under the law to sanction different levels of health coverage for employees based solely on the way their employers are organized for ownership purposes?

If a religious exemption was extended to publicly traded corporations, then how would the government determine a public corporation’s religious belief? By a vote? By 51 percent of shareholders? Could a corporation allow proxies on votes to set religious beliefs? Can you even claim a religious belief by proxy?

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Decent questions all, demonstrating the need for law schools producing persons who can argue both sides and judges who can decide.

But here’s a handy rule of thumb when confronted by questions so numerous and difficult: Avoid them if at all possible.

In this case, President Barack Obama’s Supreme Court nominees-Sonia Sotomayor and Elena Kagan-offered during oral arguments a perfectly sound and indeed compelling argument for avoiding all of them.

They said Obamacare doesn’t mandate that Hobby Lobby or any other employer provide health insurance … for anybody or anything.

It’s true.

There is a provision that companies of a certain size either provide health plans to their employees or pay a$2,000-per-employee tax-not a penalty, but a tax, according to the Supreme Court in the last big Obamacare case.

Sotomayor and Kagan told Hobby Lobby’s lawyer that $2,000 was a lot less than the average cost per employee in group health plans offered by employers.

So, they explained, Hobby Lobby could simply drop its company plan, pay the $2,000-per-employee tax, or $26 million, and still come out enough ahead to give pay raises to employees to offset the fact that health insurance was no longer an inherent part of the job.

The point is not whether you think that’s the right or best or logical course for Hobby Lobby or any employer.

The point is that-to be fully accurate-the government is not actually requiring Hobby Lobby to provide the categories of insurance it finds objectionable on religious grounds.

Hobby Lobby’s lawyer demurred, saying the company believed providing health insurance was a corporate religious obligation, just as it believed not covering the morning-after bill and a couple of IUDs was a corporate religious obligation.

That’s the first I’ve heard of health insurance being a religious obligation.

I would not recommend that President Obama try the argument. Only fundamentalists and evangelicals can get away with rhetoric like that.

But the fact is that Hobby Lobby could send its employees into the health-care exchanges, pay $2,000 per employee into the federal treasury to help with subsidies, then raise wages and salaries from insurance savings to get flush with employees and effectively meet the Lord’s supposed command of providing health insurance.

Everyone could go to heaven. Everyone would be covered.

And we wouldn’t have to answer that long list of tough questions.

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John Brummett’s column appears regularly in the Arkansas Democrat-Gazette. Email him at [email protected]. Read his blog at brummett.arkansasonline.com, or his @johnbrummett Twitter feed.