The case may turn on arcane questions about whether the Trump administration followed proper rulemaking process or about how much flexibility Congress granted the executive branch in the Affordable Care Act. Yet at the heart of the case is a question that preexisted the Trump administration: How reasonable was the Obama administration’s compromise plan, and can some lawful balance be struck between the two sides?
A federal law, the Religious Freedom Restoration Act, holds that the government may impinge on religious liberty only in furtherance of a compelling interest, and only if a policy is minimally restrictive of religious practice. The Obama administration’s contraception mandate compromise met both conditions.
Ready access to contraception promotes healthy pregnancies, lower abortion rates and healthier outcomes for women overall. Before Obamacare, cost was a substantial barrier; contraceptives made up 30 to 44 percent of women’s out-of-pocket health-care spending. When the Trump administration attempted to exempt large numbers of employers, it estimated that between 70,500 and 126,400 women would lose contraception coverage in one year.
While churches are a special case with a relatively small slice of the workforce, nonprofit charities, universities, hospitals and for-profit companies that might claim a religious objection employ many thousands of people. The government has a legitimate interest in ensuring that those people do not lose access to essential family planning services.
The Obama administration compromise would have required objecting organizations simply to inform the federal government that they indeed object. From there, the government would have worked with the objectors’ health insurers to offer costless contraception directly to their employees. Beyond giving notice, the objectors would have suffered no further involvement and paid nothing for any contraceptive care their employees received.
The mandate’s critics argue that the mere act of giving notice would be intolerable, and that nothing short of offering full exemptions to practically any employer that wants one will do.
Federal law demands special care for the concerns of the faithful in striking a balance between religious liberty and governmental interests. It does not insist that there be no balance at all. The Obama administration accommodated all sides in good faith. The court should respect the principled balance that the Obama administration struck.