(Bloomberg View) — Surely the Obama administration could find a way to provide contraception to women without involving a group of Catholic nuns. This has been the refrain of the administration’s critics since 2012, when it announced that most employers would have to offer health coverage that included contraceptives. The Supreme Court has just unanimously made the same point as the critics, if in softer language.
It vacated a lower-court ruling that would have forced the Little Sisters of the Poor, which runs nursing homes for low-income elderly, to comply with a version of the administration’s contraceptive mandate. The court instructed lower courts to hear further arguments from the parties on how to provide contraception to women while respecting the employers’ religious freedom.
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The court stopped short of saying the administration had violated the nuns’ rights under the 1993 Religious Freedom Restoration Act (RFRA). Perhaps it is split 4 to 4 on that question. The decision to sidestep it, though, underscores how unnecessary it was to divide the justices, or voters, over contraception.
America had managed to get through the vast majority of its history without any contraceptive mandate. President Obama’s first term, all of which took place before the implementation of the directive, was not marked by a national crisis of access to birth control. Access was so far from being a major problem that even the highly liberal Congress of 2009-2010 enacted no explicit mandate.
It did, however, enact the Patient Protection and Affordable Care Act of 2010 (PPACA), which included a provision giving the secretary of Health and Human Services the power to set a list of health benefits for women that most employers would have to cover. The administration used the provision to generate the contraceptive mandate.
By itself, this order would have led to some grumbling — a few op-eds from libertarians and social conservatives, a couple of floor speeches in Congress. But it would have led to no more than that if the mandate had included an exemption for employers with religious objections to covering the mandated benefits. The administration, however, allowed only a very narrow religious exemption, one that applied to churches but not to religious charities such as the Little Sisters of the Poor.
Eventually the administration decided it would grant these religious groups an “accommodation.” The nuns would have to sign a form giving the government access to their insurance network in order to facilitate the contraceptive coverage they oppose. If they refused, they would pay steep fines.
Supporters of the mandate treated this deal as generous: The nuns would hardly have to be involved at all. The nuns disagreed: The government was still forcing them to do something they oppose — facilitate contraception. They believed that signing the form would violate their consciences, even if the government’s lawyers argued that they shouldn’t feel that way.