The brawl over HHS’s rule requiring religious employers to cover contraception has yet to be resolved, and the fate of ObamaCare’s “individual mandate” is awaiting the Supreme Court’s verdict in June. Here is another thing those two abominations have in common: they have run into trouble because the country, and hopefully the Court, is waking up to the realization that the difference between government benefits and gutter politics has become dangerously elusive.
Contraception: Putting aside the sheer absurdity of contraception as “preventive health care,” a requirement to cover a minor, routine, predictable expense isn’t “insurance” at all; it’s a simple wealth transfer from one set of insureds to another. It is hard to see why government should require this of any insurer or employer. In the end, the government response is: “We do this sort of thing 100 times a day. Get used to it.” It’s jaw-dropping, though, to see that attitude carry forward into territory that the government and its lawyers know to be constitutionally (and politically) sensitive. Between policy fetishes and palpable constitutional concerns, it’s no contest: let’s claw for every inch.
(It’s entirely possible, and maybe likely, that the administration is clinging to the contraception bauble not for its own sake but as a first step to requiring insurers and employers, including religious employers, to cover abortion as just another “preventive” health service. But that renders its position more cynical, not less so.)
Mandate: We need the young and healthy to buy health insurance, urges the government in defense of the mandate, because they might show up in emergency rooms or with very expensive illnesses, the costs of which will then have to be paid by someone else. This, too, is a cynical falsehood. It might make sense (and to my mind, it would at least arguably be constitutional) to require the young and healthy to purchase some minimum coverage for catastrophic events. But that is not what the so-called Patient Protection and Affordable Care Act does; it is what the act prohibits. What it requires is Cadillac insurance for all, including the young and healthy—not for fear that they will enter the health care market but for fear that they won’t, and for the purpose of forking the proceeds over to someone else. Messrs. Clement and Carvin both seized on that point in oral argument, and got real traction. Though perhaps, “someone else” isn’t entirely fair: the young who are the targets of the individual mandate are also bound to be disproportionate consumer-beneficiaries of “free” contraception. The government’s lawyers failed to make that excellent point in oral argument, but I’ll give it to them. For free.
Government policies of this sort presuppose two things: (1) voters are too inattentive (or perhaps too craven and stupid) to realize what’s going on; (2) constitutional injunctions are blunt instruments—far too blunt to catch up with our fine filigree work here. Ordinarily, all this is true. Push too hard, though: people start paying attention, and the Constitution begins to bite. There are limits, after all; and those limits are what the present commotion is about.