This article originally appeared in the Austin American-Statesman on July 7, 2013.

The federal government recently suffered yet another setback in its attempt to impose the Affordable Care Act, aka ObamaCare, on private businesses, demonstrating once again the vulnerability of the law and also the administration’s misguided assumption that its opponents would simply set aside their scruples and cooperate.

Last month, an appeals court ruled that Hobby Lobby, an Oklahoma City-based chain of arts-and-crafts stores, will not face $1.3 million in daily fines that it would have had to pay beginning July 1 for not providing certain forms of birth control to its employees, as required by ObamaCare. The company’s owners are not against all forms of birth control, but they drew the line at providing the morning after pill and other contraceptives that can prevent implantation of a fertilized egg in the uterus, which they consider tantamount to abortion.

The company is one of dozens that have sued the federal government over the contraception mandate, claiming it is an infringement on their First Amendment right to the free exercise of religion. Hobby Lobby, which employs more than 13,000 people at 514 stores nationwide, is the largest company to file such a suit, of which there are now dozens underway nationwide. The recent ruling by the 10th U.S. Circuit Court of Appeals compared Hobby Lobby to a kosher butcher refusing a government order to adopt non-kosher practices, and said the company is likely to win its case.

The administration has argued that, “Hobby Lobby is a for-profit, secular employer, and a secular entity by definition does not exercise religion.” What it has failed to grasp, and what the appellate court affirmed, is that businesses are owned by individuals, who do exercise religion, and the interest of the state in providing free birth control does not outweigh the claims of the First Amendment.

Ever since Congress narrowly passed ObamaCare in 2010, the administration has assumed that businesses, local governments, and private individuals would acquiesce to its big-government health care scheme. What the feds are discovering, however, is that many Americans are not prepared to go along with a federal program they oppose.

This is true of businesses and state governments alike. To date, 36 states have declined to set up health insurance exchanges, a key feature of ObamaCare, and about half the states-including Texas-have refused to expand Medicaid. This is causing huge logistical problems for the administration, which might face even bigger implementation problems if young people choose not to sign up for expensive, benefit-laden coverage on the exchanges beginning next year.

These problems all stem from a combination of federal overreach and a heavy reliance on bureaucratic rule-making. The contraception mandate is a perfect example. As written, the law requires employers to provide workers with “qualified health plans,” which must include contraception coverage. The law does not say what counts as contraception coverage, but defers to the Secretary of Health and Human Services, as it does in many other places. HHS Secretary Kathleen Sebelius opted for the most far-reaching interpretation, and declared that employer-sponsored health plans must cover all forms of contraception that have been approved by the FDA-including morning-after pills and other abortifacients.

In issuing its “final rule” on the matter late last month, HHS said that employers at non-profit religious organizations (churches, hospitals, and universities) do not have to offer free access to birth control, but their insurance companies have to provide it anyway. In practice, this means the objections of religious organizations have been ignored, as if cost is the only consideration.

This is HHS’s idea of a compromise, and it will likely not retreat from its radical position unless forced to by the courts. But this should come as no surprise. Like so many other setbacks to ObamaCare, the administration is going to have to find out the hard way that vast swaths of the American people are deeply opposed to it and will not quietly submit to Washington’s demands.

Arlene Wohlgemuth is the Executive Director and Director for the Center for Health Care Policy with the Texas Public Policy Foundation, a non-profit, free-market research institute based in Austin. She may be reached at [email protected].

 

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