an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Hobby Lobby Part IX: There is no "employer mandate," redux: The plaintiffs' arguments about the option of not offering an employee health insurance plan
In my most recent post, I explained why the individual plaintiffs in Hobby Lobby--members of the Green family who are the directors of two for-profit companies--may have failed to allege facts sufficient to demonstrate that they would be required to do something their religion prohibits if federal law required Hobby Lobby and Martel to provide their employees
with contraception insurance coverage. But even if I'm wrong about that--i.e., even if such a legal requirement would require the Greens to do something their religion forbids--that would not be sufficient to demonstrate that federal law imposes a substantial burden on the Greens' religious exercise because, as I've argued in several posts here [see posts III, III-A and III-B below], there is no such legal requirement. The Hobby Lobby brief mischaracterizes the law on this point. At page 3, for example, the brief asserts that the Affordable Care Act "imposes an 'employer mandate,' which
requires certain employers to provide 'minimum
essential' health coverage to employees" (citing 26 U.S.C.
§ 4980H). Three pages later, the brief again states that "small businesses with fewer than fifty
employees—96% of all firms in the United States—are
exempt from the ACA requirement that employers
provide health insurance to their employees."
There is, however, no such legal requirement that any employers provide health insurance to their employees. In support of the second quotation above (at page 6), the Hobby Lobby brief cites only one source of authority--a White House document that says no such thing. Indeed, the very first sentence of the document Hobby Lobby cites states exactly the opposite: "The Affordable Care Act does not include an employer mandate" (emphasis added). In my previous posts I've explained how the law in fact operates: If any employer, large or small, offers its employees a health insurance plan, that plan -- like all other health insurance plans in the U.S., employer-sponsored or not -- has a legal duty to include an array of required services, including cost-free coverage of many preventive services, one of which is coverage of 18 FDA-approved contraceptive methods. But any employer, large or small, is legally entitled to decline to offer its employees a health insurance plan, as many employers do. And in such a case its employees will then be able to purchase health insurance on an exchange -- from a plan that meets all the applicable federal standards, including contraception coverage -- and most such employees will be able to purchase such a plan with generous government subsidies. To be sure, the provision of the ACA that Hobby Lobby cites, 26 U.S.C. § 4980H, requires employers such as Hobby Lobby and Conestoga Wood to make an assessment to the government if they do not offer employee health insurance, in order to help offset the cost of the government subsidy for the employees' purchases on the exchange. As that same White House document explains: "In 2014, as a matter of fairness, the Affordable Care Act requires large employers to pay a shared responsibility fee only if they don’t provide affordable coverage and taxpayers are supporting the cost of health insurance for their workers through premium tax credits for middle to low income families." That assessment, however, is not a "penalty" or a "fine" (as the Conestoga Wood brief argues) for violation of a legal duty. It is merely a tax. Moreover, the cost of that tax to the employer will almost certainly be far less than what the employer would have paid (in premiums and administrative costs) to sponsor the insurance plan. Because this option is legally available to an employer such as Hobby Lobby, plaintiffs cannot establish that federal law imposes a substantial burden on the Greens' exercise of religion unless federal law imposes substantial pressure on the Greens not to avail themselvesof this alternative option and instead to offer their employees an insurance plan that includes contraception coverage.
Hobby Lobby asserts in its brief (p.11) that dropping its health care plan would result in "crippling consequences." But plaintiffs have not alleged, either in their complaint or their brief, any facts that would support such a conclusion, let alone allegations that are specific enough to satisfy Iqbal and Trombley pleading standards.
The closest Hobby Lobby comes on this point is its bald assertion (p.10) that "[d]ropping insurance
would place [Hobby Lobby and Martel] at a competitive disadvantage, and
hobble their employee recruitment and retention
efforts." (In its brief, Conestoga Wood likewise asserts (pp. 39-40), without any supporting factual allegations, that the company would be put at "a competitive disadvantage in the marketplace.")
There are several problems with this.
First, that option might or might not "hobble" employee recruiting efforts on the whole: Many employees will likely be better off if they receive subsidized plans on the exchange and some marginal increase in salary (in lieu of the plan premiums that the employers would otherwise offer in exchange for their employees' labor) . . . which is one reason why many employers will, in fact, drop or decline to retain their employee plans. We simply have no way of knowing what the overall effect will be on employee recruiting and retention efforts in this particular case, because that depends on a complex array of market forces and context-specific characteristics of the workforce of these employers and their competitors (most of which are not the result of federal law), and plaintiffs have not pleaded any facts to establish any disadvantage, let alone "hobbling."
What's more, even if the plaintiffs had pleaded facts sufficient to establish some degree of harm to their employee recruiting and retention efforts (which they have not), they have not alleged any facts that would establish that such harms would be so significant as to impose substantial pressure on the companies to retain their plans, even if it meant providing contraceptive coverage. To be sure, it may be fair to assume that Hobby Lobby and Martel would, on the whole, prefer to retain their plans, for a variety of reasons, since they suggest that they would do so. But that does not mean that they are subject to substantial pressure to do so, let alone substantial pressure imposed by federal law--it might, on the whole, be a modest or tentative or ambivalent preference. The important point, though, is that the plaintiffs have failed to allege facts sufficient to show that federal law would substantially pressure them to keep their plan, even if that required contraception coverage.
Hobby Lobby adds one final assertion: "[Dropping its plan] would also harm the
employees who currently depend on Hobby Lobby’s
generous health insurance—and would undermine
Respondents’ desire to provide health benefits for
their employees, which is itself religiously motivated." (See also the Conestoga Wood brief at 8 ("as well as depriving its employees of their generous insurance plan so they are left to obtain insurance elsewhere").) Again, this statement does not satisfy the RFRA standard. Hobby Lobby (or the Greens) may well be "religiously motivated" to
ensure that its employees are "provide[d] health benefits." But
dropping its plan will not result in those employees going without benefits, for they would then be entitled to obtain an affordable plan on the exchange -- a plan that meets all the federal standards. (And Hobby Lobby would presumably increase their salaries to account for any loss of "generous" benefits beyond the federal minimums.) Moreover, even if some employees ended up with insurance benefits that were less generous in some respects than what they have received from Hobby Lobby's plan, the plaintiffs provide no allegations at all about why that would impose substantial pressure on Hobby Lobby itself not to drop its plan. My Posts on Hobby Lobby and other contraceptive-coverage cases