Why Obama Wants the Contraception Mandate to Go to the Supreme Court

The question has been asked: "Why are President Obama and the Democrats spending so much time and effort on universal coverage of contraception?"  Surely they knew that there would be religious objection.  Surely they did not think that such a decision would not go unchallenged.  Why waste time and resources defending a controversial stance with so many other things going on?

Recent polls show President Obama's approval numbers dropping among female voters, despite the "War on Women" attributed to the Republicans, and religious leaders have spoken openly from the pulpit, decrying the legality and morality of the contraception mandate, despite some apparent "concessions."  But will this stop President Obama?  I don't think so.

President Obama wants the contraception mandate to go to court.  He wants it to go all the way to the Supreme Court, even if he is not re-elected.  Once it finally arrives there, it will be argued as a First Amendment issue.  But it will not be argued as you think -- as a freedom of religion issue; no, it will be argued by the government as a freedom of speech issue, under a constitutional theory of "First Amendment neutrality," and arguing against the idea of "content-based underinclusion."

Put simply, content-based underinclusion is a term signifying that the government (at any level) has entered into the social arena and has picked winners and losers based on their content.  It can be practiced through punitive legislation -- imposing fines or penalties upon the individual or group -- or it can be practiced through subsidiary legislation -- granting awards or incentives to an individual or group.  A very simplified example of the former, being applicable to the First Amendment, would be punishing or criminalizing the public display of any nudity -- unless the depiction is female.  Conversely, an equally simplified example of the latter would be subsidizing all displays of nudity -- unless the depiction is female.

The former suppresses expression, but "under-includes" nude females[*], based on content, and therefore does not suppress all expression (though it could); the latter incentivizes expression, but, again "under-includes" nude females, based on content, and therefore does not subsidize all expression in this category[†].

But how in the world does, or can, this apply to contraception?

In order to understand the argument, we must first frame the question with imperative premises.

First, "reproductive health" must be considered as its own category, and not in the category of "preventative medicine" (a description too broad and vague to be pinned down legally).

Secondly, we must establish that the federal government, under current law, does indeed subsidize reproductive health, such as prenatal care, infertility, breast cancer treatment, treatment of sexually transmitted diseases, Viagra, etc.  This is done through, among other things, Title X family planning services, Medicare, Medicaid, and most recently ObamaCare.

Third, by the government funding reproductive health insurance, we must admit that it is engaging in government-funded speech.  That is to say, the government "hires" private agents to speak for it through subsidies.

And finally, we must consider that opposition to a contraceptive mandate is based strictly on viewpoint as opposed to the subject matter -- i.e., the medicine or devices themselves.

With these premises in mind, the question can be asked: "Does the government, by funding one point of view over another, or excluding one point of view in favor of another, limit free speech?"  By granting subsidies to universal reproductive health but excluding contraception because of the viewpoint of a certain bloc of society, government puts contraception under the category of "content-based underinclusion."  By under-including contraception (and its advocates), the government is therefore over-including alternatives, such as abstinence or celibacy (and their advocates).  This violates the principle of First Amendment Neutrality.

If (and when) the government engages in publicly funded speech, said engagement must be applied neutrally, which is to say consistently, which is to say that all viewpoints must be funded or none at all.  The government has no constitutional obligation to subsidize health care -- but since it does, it cannot exclude (or "underinclude") certain content within a category simply because of viewpoint.  Furthermore, the free exercise of religion is not violated because (a) it is the government subsidizing the coverage of contraception, and (b) the government does not force those individuals covered to actually engage in contraceptive practices.

It is thus that excluding funding for contraception, which emphasizes its competitors, constitutes abridging the freedom of speech among some, and promoting the speech of others.

Think this argument is far-fetched?  The author of this theory is none other than Justice Elena Kagan.  In 1992, she lamented the Supreme Court decision in Rust v. Sullivan, which upheld that the government could exclude from Title X funding the subsidizing of abortions, abortion counseling, and abortion referrals.  If her argument is accepted, not only will Rust v. Sullivan be overturned, but the government will actually be required to fund abortions along with other aspects of reproductive health.  Either that, or don't fund any aspect of reproductive health at all -- and then the question simply becomes "will a majority of voters rather see abortion funded and allow only moral opposition, or would they rather lose all subsidization of prenatal care, breast cancer treatment, and other facets of reproductive health?"

Andrew Schwartz is a writer at BearingDrift.com and a summa cum laude historian out of Old Dominion University, focusing on early American political, legal, and intellectual history.



[*] Logically, this hypothetical would also "over-include" the nude depiction of males by freeing that content from punishment.  Under-inclusion and over-inclusion, when applied to equal protection and expression, are indeed complementary.

[†] Again, this would also "over-include" the nude depiction of males by limiting competition and incentivizing its production.