July 12, 2013

AFTER LISTENING to nearly 400,000 comments and complaints since early February, the White House recently announced its final ruling on the Affordable Care Act’s contraception requirements.

Initially, a portion of the 2010 act mandated that large employers provide health insurance and that contraception be covered in those policies. In a kerfuffle that became an issue in the 2012 election, some employers — churches, “faith-based” hospitals and other not-for-profit organizations affiliated with religious groups opposed to birth control — protested, and the president offered a reasonable compromise. Now, religious organizations are exempt from providing contraception coverage, which will be provided separately to women on their payrolls at no additional cost. This is a win for everyone involved: Faith-based groups won’t have to compromise their beliefs, and women can get the care they deserve.

Even the Catholic Health Association has accepted the government’s compromise. “We are pleased that our members now have an accommodation that will not require them to contract, provide, pay or refer for contraceptive coverage,” the organization told the Associated Press.

Unfortunately, that’s not the end of the story. Two weeks ago, the beginnings of what’s bound to be a long legal battle erupted after the U.S. Court of Appeals for the 10th Circuit ruled that Hobby Lobby, an Oklahoma City-based chain of arts and crafts stores that bills itself as a business based on “strong values” and “honoring the Lord in a manner consistent with Biblical principles,” didn’t have to abide by the government’s rules.

Hobby Lobby is not a church or a nonprofit organization affiliated with any religious group and so doesn’t qualify for the compromise rules adopted for them. The ruling thus would allow for employees of for-profit corporations to be denied contraception coverage — and for those firms to impose the religious values of their management on employees.

The court focused on three questions: whether Hobby Lobby can be considered a “person” whose freedom to exercise religion is guaranteed under the Religious Freedom Restoration Act of 1993; if so, whether its right to exercise religion was compromised by the Affordable Care Act; and, in that case, whether the government could demonstrate a compelling interest that justified the compromise. The judges answered with two yeses and one no, assigning more value to the personhood of Hobby Lobby than of the 13,000 people it employs and slighting the government’s interest in promoting public health. In a blase dismissal of the financial burdens this exemption is likely to place on those who work at the craft chain, the court noted that Hobby Lobby does not prevent employees “from using their own money to purchase the four contraceptives at issue here.”

The Justice Department should appeal this decision. The White House offered a fair compromise to religious groups. But private businesses should not be able to impose the religious views of management onto employees while calling themselves equal-opportunity employers.