“Those employers could choose not to give health insurance and pay not that high a penalty – not that high a tax,” Sotomayor said.
Clement said Hobby Lobby would pay more than $500 million per year in penalties, but Kagan disagreed.
“No, I don’t think that that’s the same thing, Mr. Clement,” Kagan said. “There’s one penalty that is if the employer continues to provide health insurance without this part of the coverage, but Hobby Lobby would choose not to provide health insurance at all.
“And in that case Hobby Lobby would pay $2,000 per employee, which is less that Hobby Lobby probably pays to provide insurance to its employees,” Kagan said. “So there is a choice here. It’s not even a penalty by – in the language of the statute. It’s a payment or a tax. There’s a choice.”
Kagan went on to say that other U.S. businesses are “voluntarily” dropping their health insurance coverage for employees.
“You know Hobby Lobby is paying something right now for the – for the coverage,” Kagan said. “It’s less than what Hobby Lobby is paying for the coverage. There are employers all over the United States that are doing this voluntarily.”