Faux Outrage and a Real Threat to Liberty
The left has ardently objected to the Hobby Lobby decision, allegedly due to concern about women’s access to healthcare. However, their recent actions have forced people to wonder: are some of the critics more concerned with providing women with free contraceptives or with demonizing religious adherents and promoting a political narrative about a “war on women”? The evidence increasingly suggests the latter. Instead of seeking compromises that would further their objectives, some liberals have proposed extreme anti-liberty legislation that has no chance of becoming law and have manufactured controversies to allow them to continue demonizing their adversaries.
In response to the Hobby Lobby decision, Democrats have proposed a bill that would revoke the religious liberty protections of employers that object to the contraceptive and abortiofacient mandate. The bill would require employers to provide contraceptives without even having an opportunity to present religious objections to a court. Such a bill is a nonstarter with Republicans, but its sponsors further ensure that it would never become law by filling it and a related press release with inflammatory language accusing religious employers of trying to “interfere in their employees’ . . . health care decisions” and to “impose their religious beliefs on their employees.”
These statements are false and seemingly aimed at heightening the conflict rather than moving toward compromise. Was it really necessary for the Democrats to propose such a punitive measure with such incendiary rhetoric? As we will see, there are less draconian measures the Democrats could have proposed if they actually wanted to achieve their goal of ensuring that every woman had access to every type of contraceptive.
The most obvious solution would be for Democrats to push the Obama Administration and the Department of Health and Human-Services (HHS) to extend an accommodation similar to the one currently offered to non-profit organizations. Under this accommodation, an objecting employer is exempt from providing coverage, and the burden is passed onto the insurance company. The Supreme Court proposed this, it can be accomplished without legislative action, and it would seemingly solve the Democrats’ stated problems. So why haven’t they pursued this course?
Additionally, if Democrats wanted to propose a legislative fix, rather than merely lobbying the president to act, there are various alternatives that are far less drastic than the proposed bill. Democrats could have proposed a bill that would have functioned similarly to the non-profit accommodation. They could have also proposed to provide federal subsidies to employees who work for religious objectors. Critics may argue that neither of these bills would necessarily pass the House. That is true, but either alternative proposal would have an easier time passing than the actual proposal.
The federal government already subsidizes contraception through Title X and Medicaid. Republicans are far more likely to agree to modestly expand this funding than to pass a law stripping employers of their religious liberty. Compromise is entirely appropriate during the budgetary process, but Republicans shouldn’t budge a single inch when it comes to stripping Americans of their liberty. It is possible that a compromise would prove elusive, but by proposing such a perverse statute the Democrats signled that they had no interest in trying.
A second instance in which some liberals’ motivations are revealed is their incredible overreaction to the Supreme Court granting a preliminary injunction to Wheaton College. The order allowed the College to inform HHS rather than an insurance company of its religious objections to the contraceptive and abortiofacient mandate. Under the current accommodation, a non-profit must deliver a specific form to its insurance company which then has to provide contraceptives to the objector’s employees. The injunction modified the way Wheaton College would communicate its objection. That’s it, nothing more.
The Court was very clear that, “[n]othing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives.” The Court further noted that “[n]othing in this order precludes the Government from relying on this notice [to the HHS], to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.” In other words, nothing in the order would prevent even a single employee of Wheaton College from obtaining free contraceptives.
This order received a lot of press attention and was the subject of much confusion. The Supreme Court did not decide a case involving Wheaton College, nor did it strike down the non-profit accomodation, state a new rule regarding the mandate, or alter the holding of its Hobby Lobby decision. The Court merely granted a preliminary injunction to Wheaton College. This is a temporary form of relief that lasts only until the case is finally determined. If Wheaton College ultimately loses the case, it will have to comply with the accommodation without alteration.
The protective order simply ensures that the College won’t be treated as if it has already lost the case while the case is still undecided. The Supreme Court explained such a temporary order “should not be construed as an expression of the Court’s views on the merits.” No one could possibly object to a temporary measure that explicitly provided that every single woman would still receive free contraceptives and did not even state the Court’s final opinion. Right? Wrong.
Some on the left protested this order as vigorously as the original Hobby Lobby opinion. Dahlia Lithwick, writing for Slate, claimed that the Supreme Court had somehow rewritten the Hobby Lobby decision and made it “so much worse.” Andrew Koppelman, writing for the New Republic, claimed that with this order the Supreme Court had “abandoned its concern for women.” If liberals’ primary concern is providing women with free contraceptives, this reaction is utterly incomprehensible. Why should anyone care whether Wheaton College “is going to fill out one piece of paper rather than another?” Why should anyone object to the Court requiring one more level of separation between the religious objectors and the mandate, if that level of separation in no way hinders the goals of the mandate?
These questions push us to the uncomfortable conclusion that many of the loudest voices on the left care more about winning political points and demonizing conservative and religious Americans than they do about women’s healthcare. It is imperative that Conservatives, Republicans, and any Democrats who value liberty more than political maneuvering push back against this effort. Religious liberty is too important for us to allow the conversation to be dominated by dishonest partisans bent on using the issue for their own gain.
Howard Slugh is an attorney in Washington, D.C.