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.
The court stopped short of saying the administration had violated the nuns’ rights under the 1993 Religious Freedom Restoration Act. 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 Barack 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 Obama’s health-care law, 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.
Some judges sided with those administration lawyers. The Supreme Court took a wiser course this week.
And not for the first time. In 2014, a split court ruled that the Hobby Lobby chain could refuse to cover certain contraceptives to which its evangelical Christian owners objected.
When the decision came down, supporters of the administration made the consequences sound pretty dire. Justice Ruth Bader Ginsburg’s dissent conjured up the specter that companies run by Jehovah’s Witnesses would refuse to cover blood transfusions. The majority opinion dryly noted that it had no evidence of any company ever adopting that policy.
Nor have employers rushed to file cases seeking such religious exemptions.
The slippery-slope argument is even sillier in the Little Sisters case. For most of the organization’s existence, nobody questioned its right to exclude coverage for birth control.
If that right continues, its impact on Americans’ contraceptive use will be undetectable. It makes you wonder why the Obama administration thought this entirely avoidable culture-war fight was worth starting in the first place.
Ramesh Ponnuru, a Bloomberg View columnist, is a senior editor for National Review and a visiting fellow at the American Enterprise Institute.