“A Legal Entitlement to Contraceptive Coverage”

The U.S. Supreme Court’s recent decision that for-profit companies such as Hobby Lobby are not required to provide in their healthcare plans “preventive services” that include abortion-inducing drugs, raises doubts about the constitutionality of the Department of Health and Human Services (HHS) mandate requiring that all FDA-approved forms of birth control be provided in all employer healthcare plans. In a 5 to 4 decision the high court ruled that under the Religious Freedom Restoration Act (RFRA), this administrative requirement introduced under the Patient Protection and Affordable Care Act (“Obamacare”), amounts to a “substantial burden” laid upon such companies whose refusal to comply would result in ruinous fines.

As is generally its custom, the Supreme Court ruled narrowly within the framework in which the case had been brought, and thus it limited the effect of its decision to the matter in hand, exempting closely held companies from compliance with actions and procedures to which their owners had religious and conscientious objections. Hence the high court did not throw out the HHS birth-control mandate, as many had hoped. Non-profit organizations are still generally subject to it. Dozens of them have indeed filed lawsuits seeking to be exempted from it as closely held companies such as Hobby Lobby now are.

With regard to these non-profit organizations, Justice Alito, in his majority opinion, and Justice Kennedy, in a concurring opinion, both mentioned an “accommodation” offered by the Obama Administration applying to them, whereby they could certify their objections on a form authorizing the objectionable birth-control procedures to be paid directly by the insurance carriers. Justice Alito wrote that this “accommodation” would have “accomplished all of the government’s aims [mandating the universal birth-control coverage] while providing greater respect for religious liberty.”

However, in stating this, Justice Alito was not saying that the “accommodation” provided a satisfactory solution to the claims against the mandate. He specifically wrote, in fact, that “we do not decide today whether [the “accommodation”] complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge upon the plaintiff’s religious belief … and it serves HHS’s stated interests equally well.”

In other words, the subject of the “accommodation” was only mentioned and cited as an example of how HHS could have accomplished its aim of providing contraceptive coverage in a less restrictive way than requiring all policy holders to pay for it or be subject to a steep fine. However, once the subject was mentioned at all, it was very widely misinterpreted. Some commentators concluded from the mention that there was not really any Supreme Court majority in favor of invalidating the birth-control mandate itself.

However, this might be reading too much into language that was primarily and professedly meant to illustrate that, in requiring healthcare policies to cover objectionable provisions, the government had not employed the least restrictive means, as required by RFRA. This language did not necessarily mean that the court agreed that the so-called “accommodation” actually accommodated critics of the mandate.

As things stood, the holders of healthcare insurance policies under Obamacare still had to pay for the insurance that now obligatorily was supposed to provide directly for the objectionable procedures. But these procedures were not rendered any less objectionable just because payment for them came at one remove from the policy holder. This supposed “accommodation,” in other words, was never anything but a false accommodation to begin with. Among the many non-profit litigants currently suing to escape from the HHS mandate, the Little Sisters of the Poor, for example, expressly claim in their lawsuit that signing the form authorizing insurance companies to pay for the birth-control means and procedures makes them no less complicit in providing for actions that violate Catholic Church teaching.

Following its Hobby Lobby decision, the Supreme Court sent back for reconsideration by lower courts a number of cases involving companies whose owners had registered opposition to paying for immoral birth prevention procedures. In the brief, unsigned opinion such as the high court customarily employs in this kind of situation, however, there was included language stating that in one of the cases currently under litigation, that of Wheaton College in Illinois, the school was not obliged to abide by the “accommodation” position while its case was being adjudicated. The unsigned opinion specified, rather, that the form authorizing payments by the insurance company need not be signed; it was sufficient if the school simply indicated its opposition to the HHS mandate in a letter to the government.

This specification had an unusual, and indeed undue, effect: it prompted a vehement, angry reaction most distinctly not customary in situations of this kind. The three female members of the court, Justices Kagan, Ginsburg, and Sotomayor, issued a statement of their own sharply taking to task their male colleagues for supposedly abandoning a position which, the female justices held, had just been established by the Hobby Lobby decision itself. Evidently, these three female justices believe that a majority of the court does support the HHS birth-control mandate.

A “Legal Entitlement to Contraception Coverage”?
In a statement authored by Justice Sotomayor, the court’s brief unsigned opinion was characterized as evincing “disregard for even the newest of this court’s precedents”—as if the bare mention of the Obama Administration’s so-called “accommodation” by Justices Alito and Kennedy actually constituted a “precedent”! Sotomayor wrote: “Those who are bound by our decision usually believe they can take us at our word. Not so today.” She said the Wheaton College injunction risked “depriving hundreds of Wheaton’s employees and students of their legal entitlement to contraceptive coverage.”

That’s “legal entitlement to contraceptive coverage.” Apparently in the mind of this female justice and her two colleagues, she seems to be holding that the question has already been decided, and that the HHS birth-control mandate already amounts to a “legal entitlement.” It’s supposedly already a done deal!

It is hard to see, however, on what basis this could actually be the case. The mandate is not and never was an integral part of the Obamacare law itself. Whether Obamacare could have passed Congress quite so comfortably if mandatory universal coverage for birth control at no cost had been included in the original proposed law—it was passed by Democratic votes alone: no Republicans voted for it—the fact remains that it was not included in the original law. And as soon as it did get included as a purely regulatory measure, it became the target of literally dozens of lawsuits.

Indeed, when has any such proposed government measure ever aroused such immediate and widespread, indeed, massive, opposition, as represented by the dozens of lawsuits currently challenging the mandate? It remains to be seen whether it can withstand this opposition (as it clearly failed to do in the Hobby Lobby case).

Far from being an established “legal entitlement,” though, it is a highly dubious regulation, which the Obama Administration decided to introduce on the basis of a recommendation from the Institute of Medicine (IOM). For the Obama people, it no doubt had the added attraction that any opposition to it could instantly be ascribed to the so-called “war on women” which had proved to be such a successful slogan in the victorious 2012 presidential campaign. And, in point of fact, the post-Hobby Lobby rhetoric has not failed to exploit this theme—how five men on the court—all Catholics, as it happens!—are carrying on the so-called “war on women.”

Yet it is probably sadly true, however, that the mandate may well accurately reflect the current state of broad public opinion on the matter. Contraception is generally thought today to be a universal boon and benefit. Modern life is thought to be impossible without it. In the minds of nearly everybody today, Pope Benedict XVI’s pronouncement that birth control is an “intrinsic evil,” is surely quite incomprehensible to most of our contemporaries.

Rather, people today almost reflexively take for granted that, of course, contraception ought to be easily available to all. Whether as many people think that it ought to be free of charge as well—or, most especially, that it ought to be paid for by holders of mandatory insurance policies under Obamacare—these are separate questions on which there is no doubt less agreement. The Family Research Council, for example, cites a poll indicating that a solid majority of Americans oppose the idea of “free” birth control. But that contraception itself should be easily available to all is what is today commonly referred to as a “no-brainer.”

But the fact of the matter is that it is already pretty much universally available in our society today. The shelves not merely of drugstores and pharmacies but those of supermarkets and convenience stores as well teem with a wide variety of contraceptives. Nor are most of these means and methods particularly expensive. On the contrary. Moreover, under long established federal programs such as Medicaid and Title X, the government already pays out quite literally millions of dollars in taxpayer funds annually for birth-control procedures and services. How it ever got imagined that there needed to be subsidized birth control for everybody under Obamacare—much less that providing this could somehow constitute a “compelling government interest”—is difficult to fathom. In the Hobby Lobby case, the Supreme Court wisely declined to make any such finding that contraceptive coverage might be a “compelling government interest.”

Of course liberal ideology today typically does call for the universal provision of birth control. Moreover, this Contraceptive Imperative even tends to trump nearly every other consideration. This certainly seems currently to be the case with the three female members of the U.S. Supreme Court. That they could seriously imagine that what was almost an obiter dictum or even merely an aside in the brief, unsigned statement issued by their colleagues allowing Wheaton College to by-pass the Obama Administration’s questionable “accommodation” procedure—that this could somehow represent a precedent established by the court seems to be a stretch not at all justified by the facts.

The Hobby Lobby decision precisely did not settle the question of whether the mandate applies to non-profit organizations (such as Wheaton College). Nor did the exemption which the court provided to Wheaton College even come in a formal opinion of the court, but rather in a mere administrative-type note. It is thus not easy to see how this could be any kind of a “binding” decision of the court’s. It relates entirely to a case still being adjudicated.

Perhaps the three female justices consider that they are speaking in anticipation of what they believe the final decision is going to be. However that may be, that decision has still not been made, and thus there is currently no “legal entitlement to contraceptive coverage.” No such entitlement has been established, whether or not it might be established in the future. At present there appears to be no basis on which these three female justices have asserted their complaint against their male colleagues.

At the same time, while there remains hope and even a few encouraging signs that the odious HHS birth-control mandate may well eventually be thrown out by the Supreme Court, there is no assurance of this. That three of the justices who will be voting on the question, nevertheless apparently seem to think that there is already in place “a legal entitlement to contraceptive coverage” cannot be reassuring.

By contrast, Justice Sonia Sotomayor seems quite confident that the birth-control mandate is indeed here to stay and that religious or conscientious objections to it have no force or value. In her rebuke to her male colleagues, she wrote: “I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so.”

This assertion by Justice Sotomayor would seem to indicate that she thinks that no expression of religious belief—“no matter how sincere or genuine that belief may be”—has any objective weight or value in the face of what may be required by law or regulation. It is hard to imagine how any position could be more extreme—or more at variance with the guarantee of religious liberty embodied in the First Amendment to the Constitution which she has sworn to uphold.

What the court actually decided, what the implications of this decision might be (or might not be), what the RFRA law passed by Congress really does provide for, how the court might legitimately instruct a litigant, what difference it makes if an objection to a measure is based on a sincerely held religious conviction—none of these things seems to count for anything at all in the mind of this justice of the U.S. Supreme Court, but only what the permissive ideology of the day seems to be calling for. It is not a happy prospect to contemplate that, too often, this is how we are being ruled today.

Kenneth D. Whitehead


Kenneth D. Whitehead is a former career diplomat who served in Rome and the Middle East and as the chief of the Arabic Service of the Voice of America. For eight years he served as executive vice president of Catholics United for the Faith. He also served as a United States Assistant Secretary of Education during the Reagan Administration. He is the author of The Renewed Church: The Second Vatican Council’s Enduring Teaching about the Church (Sapientia Press, 2009) and, most recently, Affirming Religious Freedom: How Vatican Council II Developed the Church’s Teaching to Meet Today’s Needs (St. Paul’s, 2010).

  • Don

    In many respects, our future hinges upon the ideology of the Court’s majority. And that majority hinges upon who will be our next president. In the next ten years, we will likely see five new justices ascend to the Court. If the Court’s ideological majority shifts to the left, our religious freedoms will be greatly restricted in all sectors. If the bishops in the United States truly care about the faith and our ability to pursue it in the public sector, they MUST change their focus and get behind conservative presidential candidates.

    • fredx2

      The Democrats have now proven they are very anti-religion.

      Note how many times the Supreme court has slapped down the Obama administration in religious cases – every time. Note how the Senate Democrats sought to overturn the Hobby lobby case and FORCE people to do things that violate their deeply held religious beliefs.

      For the first time in my life, one of our political parties has become an insistent opponent of religion. They seek to read the first amendment out of the constitution..

      This is not good news.

    • DE-173

      Well then we’re screwed.

      The problem with the judiciary is that it’s members have law degrees and are members of the bar.

      Law schools are little more than thinly veiled indoctination centers and the bar association is somewhere between a medievel guild and gang in nice suits.
      Judges are the new pharisees.

      • ColdStanding

        “Judges are the new pharisees Sadducees.”

        The Supreme Court holds a position in American society more akin to the Temple in ante-70 AD Jerusalem. The priest of the temple were from the Sadducee party, not the Pharisee party. The Pharisees were dominant in the synagogues of the villages, the common man’s party, as it were.

        Some have suggested that the Sadducees represent the conservative party, but that should be taken in the sense of preserving their hold over the signs and symbols that legitimated their claim to authority and possession of the levers of power. Today, that’d be the party of Death crowd.

        Fittingly, the Sadducees held that there was no Resurrection, hence their mocking question to Our Lord about the woman whose ends up marrying the seven brothers in succession after each dies. In the end the Temple was destroyed and their clique was found no more.

        • Carl

          They didn’t believe in the Resurrection is why they were, “sad-you-see,” without the Resurrection we have no hope, we are just marking time as creatures on earth.

          Without Catholic subsidiarity and our Constitution’s original intent of federalism (limited government) we are becoming wards of the state. The new sad-you-sees today don’t even believe in life before being born—yet alone the after life.

          • ColdStanding

            Soon they will deny that anybody is actually alive.

            Then they will deny that anything can be denied.

            Then they will say, “I never said that.”

    • publiusnj

      What the bishops don’t realize is that they are NOT political players the way most NGOs and “stakeholders” are because they make pronouncements that are partly pro-Republican (on life/culture) and partly pro-Democrat (on “economic justice”). So their message becomes: “on the one hand…on the other….” That means no one can follow them in selecting candidates because either candidate is likely to be equal parts acceptable and unacceptable and it is really up to the untutored voter to make his own choice. So politicians–who have a unifocus on the next election–see little reason to pay attention to bishops, except to the extent they can cherry pick their statements for helpful sound bites (the way they are cherry picking our Holy Father’s sayings).

  • Grandmama

    As for those who are appointed to the U. S. Supreme Court: Garbage in, garbage out.

  • Ford Oxaal

    Good. Now the three bimbo-teers will have to recuse themselves in any deliberation over the “right” to contraception (cancer causing hormonal treatment designed specifically to deplete the next generation).

  • JP

    There are glimmers of hope. This entire issue is administrative in nature, and not part of the actual law of ObamaCare. This is purely an HHS Mandate concocted by HHS bureaucrats (more than likely at the behest of the President). The next President can fix this mandate with a simple phone call. Furthermore, ObamaCare could be amended, and this feature of the the law could be stricken.

    Of course, the best solution is to have ObamaCare repealed in toto.

    • DE-173

      “There are glimmers of hope. This entire issue is administrative in nature, and not part of the actual law of ObamaCare.”

      That’s not a glimmer of hope. There’s an entire body of “administrative law” that is very much the law.

      Almost twenty years ago, I attended an employee benefits tax conference where the speaker was a member of a prestigious law firm (then Groom and Nordberg, now the Groom Law Group. Address: 1701 Pennsylvania Ave NW, Washington, DC 20006, yes, a block away from the White House).

      The speaker went on to discuss the resolution of a particularly vexing contradiction that she found in the tax law (now keep in mind, tax law now only includes the actual law, Title 26, but the Treasury Regulations, Revenue Rulings, Prevenue Procedures and other IRS edicts-some that clarify the actual statutory law, some that amplify it, and some fill in the blanks that are left when Senator
      Blowhard is in a hurry to take credit for “fightinging for you”).

      She went on to say that she picked up the phone to call the “infamous” Bob Architect (who has since moved on).

      While I found it interesting that she the phone number and name of this individual, her account of the conversation was even more enlightening. She explained her analysis to Mr. Architect who then provided her with a resolution. She went on to say that after providing her with the answer, he told her that she hadn’t asked the most important question. She pondered what this question could be, and unable to discern it, asked him what it was. He responded “why” and she so ok, “why?”.
      He answered “because I said so”.
      This guy was busy issuing rules for decades, with no accountability, but with the full force of the law.
      Dodd-Frank created a board where there is no Congressional oversight, not even with funding. Obamacare did as well. This is less and less accountability, so assuming administrative law is less dangerous, is folly.

    • Carl

      Sorry to be a nay sayer but, If you look at the voting demographics of our nation we are on the verge of never voting in another Republican yet alone a Conservative Politician as President of the United States.
      We are becoming a nation of takers without enough makers. The biggest ponzi scheme of all is our federal government—“pay a little now, recruit for me tomorrow, and you’ll get a big payoff next Tuesday that never comes!

  • DE-173

    Interesting to me is that two of the three are unmarried and all are beyond the age when they would have any “use” for contraception. The feminazis used to maintain that celibate males who could not give birth could not promulgate any rules about contraception.

    Given that these three need contraceptives like a fish needs a bicycle, why shouldn’t their opinions be discounted?

    • Carl

      Not only are they “behold child bearing years,” two of them have apparently been “manless” all there adult life’s with strong rumors of being closet lesbians who need contraception even less than evil white males!

      • slainte

        Justice Sotomayor was married to her high school sweetheart Kevin Noonan for seven years until the couple divorced. http://www.huffingtonpost.com/2013/03/29/supreme-court-justice-sonia-sotomayor-oprah_n_2973135.html

        • Carl

          And supposedly she’s a great dancer and no pictures exist from the past 33 years of being single. Who’s she been dancing with?

          Sotomayor, “But did I need him in the way that he wanted me to need him? He was probably right that I didn’t.”

        • DE-173

          “Justice”… guffaw, cough, vomit…

    • Objectivetruth

      Excellent point.

  • Carl

    One man’s privilege becomes the state’s enforcement is how
    the left is winning. First they create a privilege, then a license, it becomes
    a right, a compelling state interest, and finally enforcement using any means
    by the all-powerful state.
    A totalitarian regime of man’s law over God’s law.

  • thebigdog

    In the mind of the modern liberal, free birth control should be mandatory while borders are merely optional. How truly demented they have become.

    • DE-173

      Have been for a long time, just open now.

  • cestusdei

    I am entitled to a steak dinner every Sunday paid for by you the taxpayer. Is that where we are going?

    • Guest

      Only if you are female, apparently.