“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 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).

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