Roy Edroso catches libertarian Megan McArdle (some of her past deep insights here and here) blithely dismissing critics of the Hobby Lobby win: Isn’t demanding your employer buy you birth control no different from demanding he buy you a car or some furniture? If an employer refuses to provide free toothpaste, would you sue him for condemning you to have cavities?
As pointed out at Edroso’s post (and in comments thereon), the obvious difference is that Hobby Lobby isn’t being asked to give employees something for free. Health insurance is part of their pay. Hobby Lobby is simply being told that the coverage has to meet minimum standards, which include providing birth control for women who want it (I imagine if they wanted to pay in company scrip McArdle’s argument would be “Saying you have to be paid in dollars is like demanding you be paid in gold!”).
She also argues that all the decision really does is say Hobby Lobby’s owners should be treated just like a small properitoer, why should that be a big deal? Wow, let’s think … could it be because being a corporation offers Hobby Lobby legal shielding from lawsuits and debt that small proprietor’s don’t have? Because a corporation is, in fact, legally different from a small proprietor?
That same issue is part of what makes Alito’s majority opinion a bad one. As noted in the Edroso post, Alito states that corporations don’t have a legal existence apart from their owners: “Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”
Yet if Hobby Lobby gets sued, the law clearly says that the corporation (or any other) clearly does have a separate existence. If the company can’t pay the lawsuit or settle its debts, the owners don’t make up the difference (there are legal exceptions that pierce the corporate shield, but they’re exceptions). Unlike a sole proprietor (either McArdle, despite years of writing about economics, never learned this, or she is fudging the facts somewhat).
It’s not all about McArdle, of course. Edroso also catches a libertarian explaining the solution is to dump Obamacare and “unleash market forces to lower soaring costs without resorting to price controls or rationing” Because, of course, market forces did such an awesome job picking up the 40 million uninsured Americans around prior to Obamacare. And if people can’t afford to pay for the medical treatment they need, libertarians and conservatives won’t count that as rationing.
While I’ve never agreed with libertarians, years ago I had a certain respect for them. Their position usually ran that yes, in a completely unregulated market, bad things will happen but in the long run, it works out. I don’t believe that an unregulated market will work out well for most people, but at least that view acknowledged some people would get screwed. Now “unleash market forces” is like magic: Bad results? People losing out? Don’t be silly, everyone’s getting a pony.
Someone in the comments also pointed out the Hobby Lobby situation is precisely the bogeyman opponents of Obamacare raised when the bill was going through Congress: What if the government appoints some panel that won’t let your doctor give you the treatment you want? As common with libertarians, if it’s a business that does the same thing, that’s fine.
On the same topic:
•Ruth Bader Ginsberg is much less confident than Alito the genie of a universal religious exemption can be kept in the bottle. Here are some points from her dissent.
•Scott Lemieux looks at the argument the birth-control requirement imposes an unreasonable burden on Hobby Lobby.
•Digby wonders why Hobby Lobby feels it’s morally complicit in its employees using birth control—after all, gun stores aren’t usually considered complicit in shootings?