The contraception war that just won’t end
Instead, the question of whether health plans issued under the Affordable Care Act should cover birth control has been the subject of an ongoing, maximalist culture war. The Supreme Court’s decision on Wednesday will make things worse.
The ruling concerned a Trump administration regulation that allows even publicly traded corporations — not just family-owned companies — to deny their female employees this coverage if they have religious objections.
Since most employers seem likely to continue to cover contraception, the decision’s immediate impact may be limited to an estimated 70,000 to 126,000 women, which is little comfort to those who will be affected. And giving large businesses expansive rights to invoke religion to deny employees a particular benefit creates serious dangers. The Trump rule falls far short of balancing legitimately competing interests.
The vote was technically 7 to 2, but actually, and importantly, it was 5 to 2 to 2. Writing for herself and Justice Stephen G. Breyer, Justice Elena Kagan agreed with the five conservative justices in sending the case back to the lower courts. But she raised serious and proper questions about whether the administration’s rules reflect the “reasoned judgment” that the law demands, and added: “Other aspects of the departments’ handiwork may also prove arbitrary and capricious.”
The rule’s “overbreadth causes serious harm,” Kagan wrote. She questioned extending the religious exemption to “even publicly traded corporations” and allowing closely held companies and not-for-profits to block contraception coverage not only on religious grounds but also for more nebulous “moral” reasons.
And, in dissent, Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, asked exactly the right question: “May the Government jettison an arrangement that promotes women workers’ well-being while accommodating employers’ religious tenets and, instead, defer entirely to employers’ religious beliefs, although that course harms women who do not share those beliefs?”
That is the nub of an issue that has been vexing since the Obama administration issued its initial ACA rules in 2012, providing an extremely limited exemption on contraception. It covered only narrowly defined “religious employers.” It exempted churches, for example, but not religious universities or social-service agencies and hospitals.
The administration back then was wrong not to recognize it had a broader obligation to accommodate religious concerns. After an uproar, President Barack Obama recognized the error and gave a broader group of religious institutions a chance to opt out of providing the contraception coverage, and placed the coverage requirement on private insurers.
This move was a reasonable compromise, and it was welcomed at the time by many religious providers of social services. But it was not enough for more conservative religious groups. They argued that even the act of asking for the exemption made them complicit in a policy they found objectionable. Since then, religious conservatives have pressed for ever-broader exemptions, culminating in the Trump administration’s rules and Wednesday’s court decision.
There’s good reason to wonder whether history might have turned out differently if the Obama administration had been more accommodating to religious groups at the outset. But once Obama did signal a willingness to compromise, many religious groups resisted working with the administration to avoid a showdown. Conservatives in large numbers seemed more interested in a confrontation with liberalism than in creating a sustainable consensus for religious liberty in a pluralist society.
We desperately need to stop this cycle of seeking zero-sum victories. During the oral argument on the case, Chief Justice John G. Roberts Jr. and Breyer both expressed frustration over the inability of the dueling parties to find a way to respect the rights of religious not-for-profits and the right of women to contraception coverage in their health-care plans.
Obama, after initially failing, at least tried to find this common ground. But the Trump administration is allergic to the words “common ground.” It thrives on orchestrating as many cultural conflicts as it can across as many fronts as possible.
As Kagan suggested, it falls first to the lower courts to examine Trump’s overreach in writing these expansive rules. But, ultimately, it will be for the voters to decide whether we want leadership that seeks reasonable and durable settlements of divisive cultural questions. Doing so will help us move on to such pressing concerns as getting everyone health coverage in the first place.
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