Analysis Law and Policy

Obama Administration’s Weak Defense May Prove To Be Birth Control Benefit’s Achilles Heel

Jessica Mason Pieklo

Ultimately, it may not be the conservative justices' animosity toward reproductive rights and women's health care generally that sinks the birth control benefit, but rather the Obama administration's refusal to vigorously defend it.

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

The conservative justices on the Supreme Court hate abortion rights. So it was a smart move by Paul Clement, counsel for Hobby Lobby and Conestoga Wood Specialties, during oral arguments in the Supreme Court today, to link the birth control benefit under the Affordable Care Act (ACA) to the possibility that a future government rule could also require that abortions be covered, thus “forcing” corporations to pay for abortions. There is no greater bogeyman on the right than the ever-present threat of “forcing someone else” to pay for abortion care.

But ultimately it may not be the conservative justices’ animosity toward abortion rights and women’s health care generally that sinks the birth control benefit, but rather the Obama administration’s refusal to vigorously defend it.

Justice Kennedy, while closing with a shot at the Obama administration today, did momentarily express his concerns for the employees who face the immediate burden and expense of their employers’ exercise of religion to deny them benefits under the law. But he was the only male justice even remotely concerned with the plight of employees during the argument, which is not that surprising given the Roberts Court’s deep concern with the rights of the 1 percent. Even less surprising was the fact that it was the three female justices on the Supreme Court who most vigorously defended the law, even when compared to Solicitor General Verilli, who was at the Supreme Court to do that very thing.

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In fact, it was the women on the bench who demonstrated the greatest grasp of the difference between the legal challenges to the birth control benefit and the political ones Clement proposed. Justice Sonia Sotomayor asked the obvious question of why Hobby Lobby doesn’t just drop insurance coverage and pay the tax penalty, questioning the very premise that Hobby Lobby and other for-profit employers objecting to providing the coverage face any real “substantial burden” on religious rights if there’s such an easy out. Justice Elena Kagan drove this point home:

There’s one penalty that is if the employer continues to provide health insurance without this part of the coverage, but Hobby Lobby could choose not to provide health insurance at all. And in that case Hobby Lobby would pay $2000 per employee, which is less than Hobby Lobby probably pays to provide insurance to its employees.

She continued:

So there’s a choice here. It’s not even a penalty by—in the language of the statute. It’s a payment or a tax. There’s a choice. And so the question is, why is there a substantial burden at all?

According to Clement, the cost to Hobby Lobby is to pay either a $475 million-per-year penalty for not complying with the coverage requirements or $26 million per year in tax penalties for not providing coverage at all. He said that while dropping coverage is an option, the justices should ignore that option for a couple reasons. First, Clement argued, it won’t change the fact that Hobby Lobby would still be injured as a result of the birth control benefit existing at all since it faces penalties either way and “feels punitive” to his clients who just want to do the right thing and provide their employees with health insurance that fits with their religious worldview and would rather the Obama administration find a way to make that coverage available to employees without burdening private enterprise. Of course, all taxes feel punitive to conservatives, a point not lost on Justice Sotomayor, who framed Clement’s position like this:

So the $2,000 tax—that’s what it’s called—is to help the government provide subsidies to people on the exchange that don’t have employer insurance. So it’s a tax because it’s—it is to do exactly what your client wants, to get the government to supply the contraceptives, not the insurance companies.

But Clement wouldn’t budge, insisting the “problem” with that solution is it doesn’t take into account that Hobby Lobby would be hurt; the company would probably have to raise wages to help its employees offset any cost associated with purchasing insurance on their own. In this view, Hobby Lobby faces a “punitive” tax for failing to comply with the law or a “punitive” remedy by increasing employee wages and dropping employer-sponsored health insurance. The range of injuries, according to Clement, all center on Hobby Lobby’s interests and those interests alone.

So why hasn’t the issue of the government exchanges and their potential solution to this “burdening” of corporate religious rights gotten more play? Even Justice Kennedy, who may ultimately decide to grant companies broad religious exemptions, was willing to see the exchanges as a possible escape valve to this mess of religion, contraception, and employer-provided health insurance. The problem lies with the administration, which hasn’t raised this line of argument in defending the health-care law’s birth control benefit in court.

“[T]his all turns on issues that the government hasn’t put in issue,” said Clement. “This case hasn’t been litigated on this particular theory, so I think—I’d love to have the opportunity to show how by not providing health insurance it would have a huge burden on my client and their ability to attract workers, and that in fact would cost them much more out of pocket. But that’s not been the nature of the government’s theory.”

If one stumbling point for the government case is the Obama administration’s unwillingness to aggressively champion its health insurance exchanges as a means for employers to avoid a choice between providing comprehensive contraception coverage or violating the religious tenets of its owners, then another could be the administration’s willingness to grant so many exemptions to other employers, like religiously affiliated nonprofits and grandfathered plans.

Clement used the existence of the exemptions to argue against the government’s claimed “compelling interest” in providing the coverage at all. In fact, Clement seemed to suggest, this whole mess could just go away if the administration was willing to grant the same kind of exemption to for-profit employers as it is to religiously affiliated nonprofits—a point Justice Alito was more than willing to pick up later, suggesting that there are a “number” of alternatives for women to access contraception other than through employer-provided health insurance plans.

Of course, there are a host of problems with this argument. First, conservatives tried to get such an exemption passed, and it failed. So really, Clement’s point is to show that conservatives are now trying to achieve via litigation what they were not able to accomplish via legislation.

Second, even that accommodation cited by Clement as a possible solution is under attack as too onerous under the Religious Freedom Restoration Act (RFRA). So to call this a solution is disingenuous at best, when conservatives believe the simple act of filing out a form unduly burdens religious rights.

Third, how exactly would this work in the for-profit context? Clement doesn’t say, and the justices didn’t press him for details, but we already have a road map. Employers would have to assert a religious objection to providing insurance plans that cover contraception. But unlike religiously affiliated nonprofits, where the entire notion of “sincere religious beliefs” is accepted without question, how is the government to distinguish between the “sincere” beliefs of corporate owners and those just looking to avoid fully complying with the law? There are two real answers: One is that the administration can’t or won’t be able to and will just drop the birth control benefit generally. The other would be to challenge those beliefs, and essentially litigate every request for an exemption—a cost and burden that could eventually cripple the birth control benefit politically.

Which is, of course, exactly the point.

I don’t know how the justices are going to rule in this case. I’m not quite willing to conclude that the birth control benefit is dead in its entirety and that corporations have a wide range of free exercise rights, nor am I quite willing to conclude that Hobby Lobby loses outright. But I do believe the case against the birth control benefit, both politically and legally, has been greatly bolstered by the Obama administration’s unwillingness to question the sincerity of the corporate attacks against the benefit—whether it be in the junk science that argues an intrauterine device (IUD) is an abortifacient, or in the fact that Hobby Lobby was for providing health insurance that covered contraception before it was against it. I remain firmly convinced that, absent a significant rewrite, the ACA is on the administration’s side and the side of those supporting comprehensive contraception coverage—which means if the birth control benefit falls, it will be a result of a political failing, not a shortcoming of the law.

And for that we’ll have nobody to blame but the administration.

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