When the Supreme Court ruled 5-4 in Burwell v. Hobby Lobby that the government could not force a business owned by evangelical Christians to pay for contraceptives that might act as abortifacients, progressives responded with hysteria and dishonesty. Salon claimed the Court sanctioned “bosses’ denying women all contraception coverage.” NARAL board member Jessica Valenti declared that the case is “really about a fear of women’s sexuality,” so “Maybe women should organize a safe-sex f—-in at every Hobby Lobby across the country.” Writing for the website of the New Yorker, Steve Coll suggested that the High Court might grant religious exemptions to the Taliban if it organized as a closely held American corporation. But perhaps the most extraordinary reaction of all came from likely 2016 Democratic presidential candidate Hillary Clinton.
At the Aspen Ideas Festival, Clinton warned that the Court had “introduced this element” into American society usually found in “very unstable, antidemocratic” countries where men control women’s bodies. She lamented that a “sales clerk at Hobby Lobby who needs contraception, which is pretty expensive, is not going to get that service through her employer’s health care.” And, she asked, “Does [the decision] mean if you’re in need of a blood transfusion your insurance policy doesn’t have to cover it? This is a really bad slippery slope.”
Contrary to Clinton’s insinuation, there is no contraception crisis in America or even at Hobby Lobby. The arts and crafts chain’s insurance policy covers—with no co-pay for its employees—16 of the 20 FDA-approved contraceptives. The company simply objected to paying for those pills and devices that may kill a human embryo.
Before the Obamacare mandate took effect in 2012, almost all large-employer-sponsored insurance plans
(85 percent, according to the Kaiser Family Foundation) covered contraception. The federal government already paid for Medicaid recipients’ contraception and spent another $300 million each year on contraception for lower-income and uninsured Americans through the Title X program.
The Court didn’t even turn back the clock to the supposedly scary time when middle-class and wealthy citizens might have had to shell out $9 a month for birth control. It ruled that the government could achieve its goal of co-pay-free birth control for all without forcing conscientious objectors to violate their sincerely held religious beliefs. The federal government, which intends to spend $2 trillion on Obamacare over the next decade, could scrounge up the change to pay directly for contraceptives or abortifacients not covered by conscientious objectors’ health plans, for example.
The Court’s ruling was so narrow, in fact, that it left open the question of whether a so-called accommodation created by the Obama administration for religious nonprofits would satisfy the requirements of the Religious Freedom Restoration Act (RFRA), the 1993 law under which the Hobby Lobby case was decided. The accommodation would theoretically allow such employers to opt out of covering drugs and services they found morally objectionable; their insurers would then provide these drugs and services directly to the nonprofits’ employees at no cost. Many religious groups, like the Little Sisters of the Poor, an order of nuns devoted to the care of the low-income elderly, consider the accommodation an accounting gimmick and are challenging it in pending court cases.
What about the slippery-slope argument that employers will start dropping coverage for blood transfusions and vaccinations? It simply doesn’t withstand scrutiny. Justice Samuel Alito wrote in Hobby Lobby’s majority opinion that the government could point to “no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.”
The Religious Freedom Restoration Act commands a balancing test in which a citizen’s free exercise of religion can be substantially burdened by government only if a law furthers a “compelling governmental interest” and uses the “least restrictive means of furthering that compelling governmental interest.” Alito explained that other “coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.”
There was a slippery slope to be worried about in this case, but not the one liberals warned of. Alito wrote, “It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide.”
As Democrats plot their response to the decision, the Center for American Progress is urging them to gut
the Religious Freedom Restoration Act by amending it to say that the law “does not authorize exemptions that discriminate against, impose costs on, or otherwise harm others.” But Alito’s argument shows why that approach could backfire. The American people may be conflicted about mandatory contraception coverage. But if Democrats allow the government to subject religious Americans to even more egregious mandates, they’d be asking for a fight they would—and should—lose.