President Obama met with Pope Francis at the Vatican today and discussed “the exercise of the rights to religious freedom, life and conscientious objection” in the United States, according to a statement from the Vatican. Did Francis give Obama the dressing down on the contraceptive mandate that conservatives were longing for?
That doesn’t sound like the amiable Francis’ style. But it was also unlikely that he would let the issue go untouched, especially since in February he asserted his concern with the issue of the Catholic identity of nonprofits like universities and hospitals when he urged a delegation from Notre Dame University to be “uncompromising witness of Catholic universities to the church’s moral teaching, and the defense of her freedom.”
But it’s important to remember, in the words of E.J. Dionne, that Obama’s attempt to find a compromise to the bishops’ objections to the mandate was a “clear statement that President Obama never wanted this fight.” It was the bishops who turned an innocuous effort to extend contraceptive access to more women into the cornerstone of their “religious liberty” fight.
Tuesday’s oral arguments in the Hobby Lobby case show why the Obama administration should never have acquiesced to the demands of the U.S. Conference of Catholic Bishops and created a broader exemption to the contraception mandate in the Affordable Care Act as it allowed Hobby Lobby and Conestoga Wood to argue that a similar accommodation could just as easily be extended to for-profit employers who object to contraception.
A cornerstone of the government’s case is that it has a compelling interest in ensuring women’s access to contraception which counterbalances any infringement on religious liberty under the Religious Freedom Restoration Act caused by the mandate. Hobby Lobby lawyer Paul Clement argued, however, that the accommodation granted to non-profit employers provides a less restrictive way of accomplishing the same goal without burdening employers who object to contraception. He said the argument is “not about contraceptive access” but about “who’s going to pay” for the mandate. “The government paying or a third-party insurer paying is a perfectly good least restrictive alternative,” he argued.
After it came under withering criticism from the Catholic bishops and liberal Catholic columnists for only exempting explicitly religious organization from the contraceptive mandate, the administration backed down and created a separate work-around for religious nonprofits like Catholic hospitals under which the employer’s insurance would arrange for and pay for contraceptive coverage.
But the accommodation failed to mollify the bishops, who argued that any employer who has a religious or moral objection to contraception should be exempt from the mandate. And now it appears that that very accommodation may provide a roadmap to allow employers to do just that.
Justices Scalia, Kennedy, Breyer and Roberts asked Solicitor General Donald Verrilli in various ways why the non-profit accommodation wouldn’t be sufficient to protect the rights of employees and the religious interest of employers. Verrilli argued that it wouldn’t be fair to throw the cost of the more expensive forms of contraception, like IUDs, back on the government while the employer would reap the cost-saving benefits of contraception. He also said that once such an accommodation is granted employers could then object to signing a form to trigger the exemption, following the example of the Little Sisters of the Poor.
But Verrilli struggled to explain why the same accommodation that the government deemed acceptable in protecting the interests of non-profit employees wouldn’t be acceptable for for-profit employees merely by dint of the type of incorporation of the entity. “That’s okay for not-for-profit corporations to do that with respect to all of their employees,” said Scalia of the accommodation, questioning why the government couldn’t set up the same system for for-profits.
Judging the outcome of Supreme Court cases by the oral arguments is always tricky business, but court watchers from the New York Times to Slate’s Dahlia Lithwick say the tea leaves are pointing toward allowing some kind of exemption or accommodation for small, closely held corporations like Hobby Lobby.
And as Justice Ginsberg noted, once an exemption is allowed based on religious objections to one type of contraception like emergency contraception, which the plaintiffs claim is an abortifacient, there’s no reason that employers can’t object to providing all forms of contraception.
And that’s what the bishops were angling for all along. It’s about making a broad statement that contraception isn’t health care and fertility control is somehow illicit and can be segregated from health insurance. And the Obama administration may have helped make that possible by bending over backwards to accommodate the bishops’ religious liberty demands.