The HHS Mandate Fight Will Continue

Published June 30, 2014

National Review Online

Today’s Supreme Court decision in the Hobby Lobby case should be seen as a clear and important victory for religious liberty. The majority opinion, written by Justice Samuel Alito, makes it clear that owners of closely held corporations, based on their sincerely held religious convictions, have the right to opt out of the so-called HHS mandate – the regulatory requirement that employers must include free contraceptives, sterilization procedures, and abortifacient products in their health-insurance offerings to workers. The plaintiffs in this case should be commended for having the courage to fight for their rights in court and for seeing their case through to victory despite the many obstacles they faced along the way.

But even in victory, it is hard to avoid the sinking feeling that having to fight at all over this issue is something of a defeat.

That’s because the HHS mandate was always a politically contrived issue without real legitimacy. Prior to 2011, there was no mention by President Obama or anyone else of a real crisis of inadequate access to contraceptives. That’s because contraceptives in the United States have long been very inexpensive, readily available from all manner of outlets, and quickly prescribed and dispensed by physician offices, including physicians working at publicly subsidized clinics. Among other things, the Medicaid program pays for these products for millions of lower-income Americans. Anyone who sincerely sought access to contraceptives could secure them with minimal effort and expense.

The problem that the Obama administration hoped to address with the HHS mandate wasn’t compromised access to contraceptives but the president’s reelection prospects. His political advisers knew that the 2012 campaign could be won only if, among other things, very high numbers of young, single women came out to vote and cast their ballots for Barack Obama. The issue they settled on to drive these voters to the polls was the HHS mandate.

To generate the kind of political reaction they were seeking, it wouldn’t suffice to simply create another program trying to subsidize access to contraceptives for those without coverage through an employer. They needed to make an ideological point that they knew would create some opposition. Hence, the requirement that allemployers covered by Obamacare’s regulations pay for contraceptives, sterilization procedures, and products that induce early-pregnancy abortions. And the requirement isn’​t only to pay part of the cost; the employers must cover all of the expenses so that these products and services will be entirely free to employees.

This formulation ensured political opposition from those who object to these products and services for religious reasons, allowing the administration to label opponents as perpetrators of a supposed “war on women.”

What’s most discouraging is that millions of American voters really seemed to buy it. The absurdity of the “war on women” claim has not undermined its potency. Unfortunately, the Hobby Lobby decision, welcome and necessary as it is, ensures that the “war on women” flag will be waved incessantly in the run-up to the 2014 midterm election. The GOP will need to do a far better job this time around in framing the issue and making it clear that what the Obama administration wants is not access to contraceptives but victory in a pointless ideological crusade.

Important legal questions also remain even after Hobby Lobby. Cases brought by religious nonprofits, including many brought by Catholic institutions, are winding their way through the courts. It seems possible that next year at this time the Supreme Court will be issuing a ruling as consequential as Hobby Lobby related to these cases.

At issue is the so-called accommodation offered by the Obama administration. The religious nonprofits who are suing the government, such as television network EWTN and large universities, are not exempt from the HHS mandate, as “houses of worship” are; but, under the “accommodation,” they are supposedly relieved of the requirement to include contraceptives, sterilization procedures, and abortifacient products in their health-insurance plans. In reality, however, the “accommodation” provides no relief because, when an employer opts out of offering the contested products and services as the accommodation requires them to do, the insurer that the employer works with is required to cover the contested products and services for free anyway. In other words, if the employer offers health insurance at all to its workers, the products and services in question will be covered for free, even if the employer has supposedly “opted out” under the accommodation.

The Alito decision referenced the accommodation to make the point that the administration had conjured up a mechanism for the religious nonprofits that they were not extending to the for-profit companies. That was seen as evidence that the administration had not met the statutory test of pursuing the least burdensome mechanism (in terms of infringing on religious convictions) to pursue its contraceptive objectives, at least with respect to the for-profit companies. In the days ahead, it will be important to stress once again that this accommodation is not a solution for anyone, including the for-profit companies.

Today’s victory is definitely one to savor. The administration had acted with such utter disregard for traditional religious sensibilities that it is satisfying to witness the court deliver this well-deserved rebuke. But it’s premature to assume this fight has been won, with the political storm still raging and more court battles ahead.

— James C. Capretta is a senior fellow at the Ethics and Public Policy Center and a visiting fellow at the American Enterprise Institute.

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