We’ve covered the story of Hercules Industries, the family-owned Colorado manufacturing company which won a temporary injunction against the ObamaCare mandate requiring all companies to purchase insurance that provides contraceptive coverage for their employees. The Newland family, which owns the company, states that such a requirement violates their own free exercise of their religion, and filed a complaint against the regulation. The penalty for non-compliance is $100 per employee per day, so for a 265-person company such as Hercules, that could amount to nearly $10 million per year.
“The fact is, that the fines and penalties that the HHS [Health and Human Services] mandate would impose on Hercules, were it to elect not to comply with the mandate – were obliged to comply, and elect not to comply – are crippling,” said Mike Norton, an attorney with the Alliance Defending Freedom, which is representing Hercules.
When Pres. Obama visited Denver last week, he sought to emphasize what was termed “Women’s Health Security” to the point of having Georgetown Law student Sandra Fluke introduce him. Fluke spoke in February to the House Democratic Steering and Policy Committee in favor of the insurance mandate to cover contraception.
We asked a number of people, after Obama’s speech, what they thought of the mandate, and what they thought of the penalty for non-compliance. One of the respondents [see video above] is a student at the University of Northern Colorado. After giving some background on the case, we asked…
QUESTION: “Do you think it’s reasonable for an employer to have to pay $10 million per year if they decide not to comply with that provision?”
ANSWER: “It’s not a bad idea because regardless of religious beliefs, all your employees might not follow those same religious beliefs, and you can’t just be like, I’m not giving you contraceptives because I don’t believe in it, because then, they don’t have the right to get it. And I might not follow my employer’s religious beliefs, but just because he believes something else, and I believe something else, doesn’t mean I should be unable to get contraceptives.”
Q: “So, in principle, you believe it is an O.K. thing to assign a penalty. Do you think the amount of the penalty is reasonable?”
A: “I mean, there’s no reason they shouldn’t be providing contraceptives for their employees, so if they’re not going to comply with the law, then they have every reason to be paying this penalty.”
Q: “So if it shuts them down, is that a good thing for Colorado, given the economy we’re in?”
A: “I think that’s just the risk they’re taking by not providing contraceptives.”
The implication is that it’s better that the company shut down, and employees not have jobs, than that employees be required to purchase or obtain contraception on their own.
Another woman interviewed [see video above] concurred…
QUESTION: “The employer is required to provide health insurance coverage that includes contraceptive services. So let’s say they have a religious view that contraception is something that they should not fund because it violates their religious conscience, do you think they should be subject to a $10 million fine?”
ANSWER: “Yes, I think there needs to be a consequence for things like that. Because women are underserved, poor people are underserved…”
Q: “If it were a $20 million fine, do you think that would be reasonable?”
A: “It’s not gonna happen, let’s face it. The person, the employer who does not want to provide that is going to fire the employee or close his doors or change his name. There’s always a way around a law like that. You’re not going to go to court over a $20 million fine…”
Q: “Well, they did. They did go to court, and they did get an injunction – they got a 90-day injunction…”
A: “Good luck with it.”
Q: “…and it’s going to put them out of business, so I just was curious to know if you thought that would be something that would be…”
A: “I think there has to be a consequence, but I’m not a lawyer, so I don’t know what that consequence should look like.”
While saying there had to be a consequence, she also doubted that the consequence would actually happen before saying she wasn’t sure what the consequence should be.
It would seem to us that the consequences for the employer far outweigh those for the employee in this instance.
Both these women make the point that employers shouldn’t get between women and their contraceptive decisions. But nobody’s suggesting that they should. ObamaCare’s mandate that insurance companies cover contraception obligates companies that self-fund their insurance plans like Hercules to pay for services that may violate their owner’s religious beliefs.
But if Hercules or another company doesn’t want to pay for it, the company gets a virtual economic death penalty. That’s what the “balancing test” looks like in ObamaCare.
And that is truly a breathtaking proposition.