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Robert Bennett: Health care decisions should be left up to individuals

Published: Monday, July 7 2014 12:00 a.m. MDT

A demonstrator holding up a sign outside the Supreme Court in Washington on the day the court decided in the Hobby Lobby case to relieve businesses with religious objections of their obligation to pay for women's contraceptives among a range of preventive services the new health law calls for in their health plans.

Pablo Martinez Monsivais, Associated Press

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The Supreme Court's Hobby Lobby decision has generated lots of commentary about what it really means.

Justice Ginsberg says that women will now be denied access to contraceptives. One TV commentator showed her skepticism of that by asking, "How did women get birth control before Obamacare?" Another pointed out that Hobby Lobby's current plan does include coverage for certain contraceptives; it only leaves out those that offend the religious beliefs of its owners. And the simplest form of birth control has been available over the counter in drug stores for decades, at a price that any Hobby Lobby employee can afford.

Professor Alan Dershowitz, of the Harvard Law School, agrees with these skeptics even though he disagrees with the decision. He says it is not an interpretation of the Constitution but merely "the construction of a statute . . . not a single woman will be denied contraceptive care . . . (The) alternatives by which (a) woman can get adequate contraceptive care won't be burdened in any way."

Debra Sanders, writing in the San Francisco Chronicle, says the exception that the Court's decision gives to Hobby Lobby is not unique. "The ACA already exempts employer sponsored health plans," she says, "…which means about a third of workers have health coverage that does not include birth control. Obamacare also exempts small employers from the contraceptive mandate. Surely, if the Obama administration can exempt millions of workers for reasons of political expediency then it can find a way to exempt the rare corporation with strong moral objections."

Some commentators position Hobby Lobby's refusal to offer all forms of contraceptive coverage on religious grounds as a violation of the religious freedom of those employees who want it. No doubt some employees feel that way. However, Hobby Lobby's owners' religious convictions are very well known and it is likely that many employees applied for their jobs because they held the same convictions. Requiring them to pay into a plan that subsidizes procedures they consider immoral is the flip side of this argument.

It's a highly emotional issue, but there's an easy way out.

Empower the individual. Take both the government and the employer out of the decision-making process. Change the tax law so that Hobby Lobby and every other employer can give its health care expenditures directly to its employees, tax free, empowering them to control their own money and pick their own plans. Those who want contraceptive coverage could buy it and those who don't wouldn't have to.

This is the key concept of the bill I wrote with Sen. Ron Wyden (D-Ore), a bipartisan effort that had 19 co-sponsors – 10 Republicans and 9 Democrats. The Obama administration chose to ignore us and instead push the government ever more deeply into the existing (but collapsing) system of employer controlled health care. The Hobby Lobby case is only one manifestation of the problems that have resulted. Even some leading Democrats are now saying that Obamacare needs a serious overhaul.

The question is, in which direction? With the scandal at the VA having tarnished the idea of a single-payer system run by the government, let's try empowering individuals for a change, and see how that works. I think Justice Ginsberg might be pleasantly surprised at how good that would be for everyone, very much including women.

Robert Bennett, former U.S. senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah’s Hinckley Institute of Politics.

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