Sally Steenland: Wise as serpents but harmless as doves

  I thought of Jesus the other day when I read about the Obama administration’s latest effort to provide women with the health care they need. In late August, the Obama administration announced yet another set of rules for insurance plans’ birth control coverage in response to a seemingly unending series of objections by employers and other opponents. Their complaint? That having to include contraceptive coverage in their insurance plans under the Affordable Care Act, or ACA, violates their religious liberty.

  For more than two years now, opponents have put forth one set of objections to the birth control provision in the ACA only to shift ground and issue new concerns after the earlier ones were addressed. I would have lost patience long ago, which brings me back to Jesus and his urging to go the extra mile and be long suffering in the face of adversity. He also tells us to be wise as serpents but harmless as doves.

  This last admonition seems especially relevant in the face of the new birth control rules, which are not only generous but also strategic. But first a little background.

  The ACA contains a provision that requires employers to include a range of preventive health services in their insurance plans, including all FDA-approved forms of contraception. That’s because access to birth control is linked to healthier babies and mothers, as well as many other positive outcomes, such as higher educational achievement, a narrowed wage gap, longer marriages, and more. More than 9 out of 10 women use birth control at some point in their lives, but many struggle to pay for it. Therefore, including it in the ACA as one of the basic health services for women makes sense.

  However, some religious employers believe that birth control is morally evil. To address these concerns, the ACA has always included a religious exemption for houses of worship, allowing them to opt out of contraceptive coverage in their health plans. Following complaints from religiously affiliated institutions—such as schools, hospitals, and charities—after the 2010 passage of the ACA, the administration added an accommodation to the law in early 2012 that guarantees such institutions do not have to pay for, or be involved with, contraceptive coverage. Instead, they merely need to fill out a short form certifying their objection to their insurer, which will then directly provide the coverage to employees.

  You would think that these provisions would be more than adequate—but you would be wrong. Soon after being granted the accommodation, many of the religiously affiliated institutions turned around and sued the administration. It seems that filling out the form was too onerous—and that certifying their objection to birth control meant cooperating with evil and was a violation of their religious beliefs.

  A number of for-profit corporations also sued the administration, claiming that corporations had religious liberty and couldn’t be forced to violate the beliefs of their owners, whose objections to birth control were various and sometimes conflicting. Of course, the irony was that by refusing to include contraception in their insurance plans, the corporations were violating the religious liberty of their workers by forcing them to abide by the boss’s beliefs.

  Fast forward to this summer, when the Supreme Court ruled in favor of Hobby Lobby, one of the for-profit corporations  that sued the administration. In ruling that corporations do indeed have religious liberty, the Court suggested that one solution was for the Obama administration to broaden the accommodation to include for-profit corporations. The clear implication was that the accommodation was a workable solution for both nonprofit organizations and for-profit corporations. But just days later, the Court seemed to change its mind when it granted an injunction to Wheaton College, a Christian college that refused to abide by the accommodation. The justices said that the college needn’t fill out the form required by the accommodation and should instead be allowed to simply notify the government of its objections.

  Which brings us to the new birth control rules issued last month. Let’s start with the generous part.

  Rather than challenge the inconsistency and unreasonable nature of the shifting complaints, the administration’s new rules really do go the extra mile. First, in response to the objections of religiously affiliated institutions that refuse to fill out the form and send it to their insurers, the new rules do away with the form entirely and simply require the institutions to notify the government in writing of their objections. The government will then notify the insurer, which will then provide birth control to employees. It’s an extra managerial step but nonetheless one suggested by the Supreme Court last fall in the case of another complainant, Little Sisters of the Poor, as well as—more recently—Wheaton College.

  Another generous aspect of the new rules is that they propose to broaden the scope of the new accommodation to include closely held for-profit corporations. In the wake of the Hobby Lobby decision, the new rule would guarantee that—similar to religiously affiliated institutions—employees get the contraception they need without requiring that the corporation either pay for or deliver it. Unlike the new rule for nonprofits, which goes into effect immediately, this proposed rule for corporations is open for public comment for 60 days.

  Now for the strategic part of the new rules, which seem aimed at lawsuits due to come before the Supreme Court this term—specifically, those filed by the religiously affiliated institutions granted the accommodation. The new rules anticipate—and solve—virtually every concern that justices have raised since the ACA became law and that could lead to another restrictive Supreme Court ruling.

  As my colleague Ian Millhiser puts it, the new rules call the Court’s bluff: They “rest on the assumption that the Court can be taken at its word, and that if the administration provides virtually every accommodation to religious objectors that the justices have thus far demanded, then its newest round of regulations will be upheld.”

  And if not? Then the “extreme partisanship” of the Supreme Court will be exposed and its reputation further damaged as it becomes abundantly clear that the issue at stake has nothing to do with religious liberty but is actually a brazen political attempt to mortally wound the ACA.

  About the author: Sally Steenland is Director of the Faith and Progressive Policy Initiative at the Center for American Progress. Steenland, a best-selling author, former newspaper columnist, and teacher, explores the role of religion and values in the public sphere.

  This article was published by the Center for American Progress.