What strikes me about the Hobby Lobby case is that business corporations are afforded greater rights under RFRA to exercise religious freedom than individuals. Under the ruling, the Hobby Lobby corporation can avoid the so-called employer mandate penalty despite not offering its employees “minimum essential coverage” under the ACA (by reason of the abortive contraception exclusion).
But could an employee of private corporation claim an exemption from the individual mandate if she declined to accept the employer’s ACA-qualifying health plan on the grounds that she does not believe in or use contraception and, therefore, she could not abide seeing her premium dollars applied to pay for abortive contraception care for others? Nope, not the way the law now stands.
The individual mandate (“shared responsibility payment”) works this way:
Under 26 U.S. Code § 5000A(a), an “applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month. ” The term applicable individual does “not include any individual for any month if such individual has in effect an exemption under section 1311(d)(4)(H) [of the ACA] which certifies that such individual is— (i) a member of a recognized religious sect or division thereof which is described in section 1402 (g)(1), and (ii) an adherent of established tenets or teachings of such sect or division as described in such section.”
In turn, 26 U.S. Code § 1402(g) provides that individuals may file an application for an exemption from the individual mandate “if he is a member of a recognized religious sect or division thereof and is an adherent of established tenets or teachings of such sect or division by reason of which he is conscientiously opposed to acceptance of the benefits of any private or public insurance which makes payments . . . toward the cost of, or provides services for, medical care . . . .”
This exemption may be granted (by the Social Security Administration) if, among other things, the claimant agrees to waive “all benefits and other payments under titles II and XVIII of the Social Security Act on the basis of his wages and self-employment income as well as all such benefits and other payments to him on the basis of the wages and self-employment income of any other person,” and only if the Social Security Administration determines, among other things, “such sect or division thereof has been in existence at all times since December 31, 1950.”
Similarly, under HR 1814 (passed by the House in earlier this year but not taken up by the Senate), a member’s receipt of voluntary medical services (broadly defined as those covered under the ACA) would render him ineligible for the employee mandate exclusion. HR 1814 seems to be designed to work for Christian Scientists, faith healing sects and those relying on alternative healing methods (such as holistic), but not others.
In other words, only an unincorporated person’s well-baked religious conscience (using grandmother’s famous 1950 recipe) will be accepted as an excuse for individuals to weasel out of the individual mandate, unlike the broad religious freedom that business corporations are afforded in claiming a RCRA exemption to the employer mandate. Logically, it would seem that the reach of RCRA should be extended to unincorporated persons (sometimes called “individuals” or “people”).
Please tell me I am misunderstanding something here.