Thursday, July 3, 2014

Another Useless Opinion on Burwell v. Hobby Lobby

Everybody else already expressed their opinion better than I could ever express mine, but I will take a quick moment to point out that some of the things Hobby Lobby is objecting against covering are actually medically necessary for some people with certain issues; this has included my wife in recent times. I am glad to work for an employer who hasn't decided to attempt to restrict what I spend my health care coverage on, so that these things were available my wife affordably, who did in fact have a medical need for them.

And let's be clear; it's my health care coverage. It's a form of compensation from my employer, and it's up to me, in coordination with my loved ones, in consultation with our medical professionals, on how we want to spend it. I don't believe it to be appropriate for the employer to have a hand in what they feel is appropriately covered based on moral grounds.

Hobby Lobby's 401k plan invests in companies that make and sell many of the contraceptive devices that they themselves object to. (As well as exporting great amounts of goods from China, where abortions are much less rare than in the US.) I've seen people call this a red herring. I disagree; it matters, and here's why.

We need to start with this reasonable explanation from Jeffrey Brown explains in Forbes that Hobby Lobby's hands are tied in this regard, in that it must comply with US pension law. OK, I'm with him so far on that point.

But then, allow me to call out the addendum added to the end of the article, which he uses to respond to critics. In it, he states:

"The primary objection that I am hearing from readers is not that my analysis of current U.S. retirement plan law is inaccurate, but rather that it is a prima facie case of hypocrisy that Hobby Lobby conformed to the 401(k) laws while challenging the health care law, even though both could be construed as violating the owners’ religious freedom.   I might agree with this line of reasoning if it were free to mount legal challenges.  But legal challenges are anything but free: a report on Marketplace last year estimates that it takes a minimum of $250,000 – and more often millions of dollars – to take a case to the Supreme Court.  Given the high cost, it seems perfectly rational for any person, company or organization – and regardless of the constitutional issue being argued – to choose cases that they believe have the highest chance of winning.  I would not be surprised if their legal counsel advised them (correctly, it turns out) that they could win the health insurance case, whereas they might not win a case challenging the fiduciary rules for 401(k) plans.  Keep in mind that Supreme Court cases are not debates about the relative merits of various public policy alternatives.  Rather, they are argued on constitutional grounds, and thus the details of the law and the details of the case matter enormously.  Given the outcome of the case, it is hard to argue that Hobby Lobby made a bad decision about legal strategy.  But their unwillingness to mount two expensive legal battles simultaneously rather than focusing on one does not necessarily imply hypocrisy."

His point is made in a reasonable tone of voice, but the logic is twisted. I strongly reject the implication of hypocrisy based solely on the potential cost to Hobby Lobby associated with mounting an additional legal challenge. If this is truly the most important thing to them under their moral convictions, and we know that they are financially secure enough to be able challenge one law, why would they not attempt to challenge the second law? Both laws, through the narrow, moral scope of the lens being applied here, require funds that started out in the accounts of Hobby Lobby, to be transferred to accounts for use to support devices and practices that they object very strongly to.

According to Forbes, Hobby Lobby's revenue was $3.3 billion in 2013. "It's too expensive to challenge" rings hollow in this context. The amount of money they would spend is, relatively speaking, pocket change.

And finally, from further up in Mr. Brown's article, I'd like to highlight this point: "It is individual employees, not the owners of Hobby Lobby, who make the portfolio allocation decisions."

I think that's fair, to be honest. In fact, that's all I wanted with regard to health care coverage, too. Sigh.

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