The most immediate issue, with Supreme Court Justice Sonia Sotomayor issuing a temporary stay of the mandate, involves the most sympathetic of plaintiffs, the Little Sisters of the Poor.
Churches and other religious groups opposed to contraception are not subject to the mandate. But religiously affiliated institutions, such as Catholic hospitals and the nursing homes run by the Little Sisters, do not enjoy that blanket exemption.
Instead, the Obama administration, seeking to quell an uproar over religious freedom, brokered a compromise under which these quasi-religious institutions do not have to subsidize contraception. Rather, once they file a form asserting religious objections, the coverage is underwritten by insurers, with government reimbursement.
Not good enough for the Little Sisters of the Poor. They claim that merely signing the form forces them to “abandon their religious convictions and participate in the government’s system to distribute and subsidize contraception, sterilization, and abortion-inducing drugs and devices.”
The Sisters are sincere; their legal argument is hooey. It transforms a good-faith attempt to accommodate into a sinister vehicle of co-option. The Sisters contend that signing the form implicates them in a morally repugnant scheme, allowing their employees to obtain contraceptive coverage elsewhere. By this logic, so does issuing paychecks used to pay for birth control.
Further, as Cornell University law professor Michael Dorf argues, signing the form no more makes the Sisters an agent of contraception than attesting to conscientious objector status back in the days of the draft embroiled a Quaker in waging war. Indeed, the Quaker may have been more tainted by signing; his exemption meant drafting someone else.
Amazingly, as the administration told Sotomayor, even if the Sisters signed, their employees would not obtain contraceptive coverage. A separate law exempts church-run insurance plans such as the carrier the Sisters use. So signing the form is an act without real-world consequences.
The related issue, to be argued before the Supreme Court later this year, involves whether the contraceptive mandate violates the religious freedom of for-profit corporations whose owners object to providing some or all forms of birth control.
This argument is even hooier than the Sisters’. One of the companies, Hobby Lobby, a chain of craft stores with more than 13,000 employees, is owned by a Christian family, the Greens, that opposes abortion and believes life begins at the moment of conception. When the contraceptive mandate was passed, the Greens examined their existing insurance policies and discovered that they covered some methods of birth control (certain IUDs and emergency contraceptives) that prevent implantation of an already fertilized egg. They changed the insurance coverage and filed suit objecting to the mandate.
An appeals court agreed, finding that Hobby Lobby was a “person” under a federal law barring the government from imposing substantial burdens on religious freedom. More hooey. It is one thing to say that corporations have free speech rights to express political views, as in Citizens United; corporations have legitimate interests in politics. It is quite another to impute religious beliefs to a corporate entity and to let those beliefs trump employees’ rights under federal law.
But — and here I veer off the liberal reservation — there is also a tendency toward hyperbole on the other side. Treating contraception as a preventive service makes moral and economic sense. It will result in fewer abortions and lower medical and other costs.
Yet even if the Little Sisters and Hobby Lobby were to win, the vast majority of women with insurance coverage would enjoy access to contraception without a deductible or co-payment. Some women would have to pay out of pocket — as, presumably, they did pre-Obamacare — and that would impose an economic burden.
But not necessarily an insurmountable one. Target and Wal-Mart offer generic birth control pills for $9 a month. Planned Parenthood puts the monthly cost at $15 to $50. So when the administration contends “that no one, including the government or for-profit corporations, should be able to dictate [health-care] decisions to women,” this seems a bit overwrought.
Denying contraceptive coverage is not, as the White House asserts, coming “between a woman and her doctor.” It’s coming between a woman and her insurance company. That’s a difference worth remembering.
Read more from Ruth Marcus’s archive, follow her on Twitter or subscribe to her updates on Facebook.