It's time for critics of the Obama administration's contraceptive mandate to drop the pretense. The fight is no longer about employers being required to pay for contraceptives, particularly "morning after" pills that some consider abortifacients. It's about employees being able to obtain them.
The final rules released Friday, like the ones that have been in effect since last August, give religious-affiliated nonprofits and closely held for-profit firms an easy way to disassociate themselves completely from their employees' use of birth control. (Churches and other religious groups that employ workers directly are exempt from the requirement.) Employers simply have to notify the Department of Health and Human Services that a) they provide insurance to their workers, and b) they have a religious objection to providing contraceptive coverage.
When notified of an objection, HHS instructs the employer's insurer to provide contraceptive coverage to the firm's female employees at no out-of-pocket cost. The coverage is paid for by the insurer itself or, in the case of an employer that self-insures, the company that administers its benefits.
Yet some opponents of the rules continue to claim that they are being forced to promote actions that are, to them, immoral. For example, here are the comments of Adèle Auxier Keim, an attorney for the Becket Fund for Religious Liberty, a nonprofit legal advocacy group that opposes the mandate:
"[T]he government still won't give up on its quest to force nuns and other religious employers to distribute contraceptives. Especially after the Supreme Court's recent King v. Burwell decision allowed the government to expand its healthcare exchanges, there is no reason at all the government needs religious employers to help it distribute these products."
But by the same logic, religious employers are helping to execute prisoners, grant divorces and issue marriage licenses to gay couples simply by paying sales taxes to state and local governments. By covering part of the cost of their employees' insurance, they're subsidizing Viagra for men who get busy with women who aren't their wives. And they're paying for abortions whenever their employees use their paychecks to terminate a pregnancy.
In other words, money is fungible. If you're trying to insulate yourself from other people's behavior, the best you can hope to do is make sure you're not paying for it directly.
The exemptions provided in the regulations finalized Friday do that. As I noted earlier, the cost of providing free contraceptives to employees of the exempt firms is born by the insurer or plan administrator. The administration argues that the cost for insurers is offset by the savings on maternity care. Plan administrators, meanwhile, can recover what they spend on contraceptives by charging higher fees for its services in other markets.
For some critics, what's really at issue is the administration's decision to require four "morning after" contraceptives to be made available for free through employer-sponsored plans. Some of the objecting employers have said they would have no problem with the mandate if not for the inclusion of those four methods.
For others, any contraception mandate is unacceptable. If the government thinks women should have free access to birth control, they argue, the government should pay for it directly. That's a disingenuous argument, of course; getting Congress' approval for such a subsidy would take something close to a miracle, especially if it covered "morning after" pills.
Either way, it's fallacious to argue that employers are forced to be complicit in their workers' use of contraceptives. The blame (or credit, depending on your point of view) rests entirely with the federal government, which requires that all adult women carry insurance policies that make contraceptives available at no extra charge — and that all large employers provide such plans. It was Congress' decision to mandate access to federally approved forms of preventive care, with the specific details of the coverage filled in by the Obama administration.
Five federal appeals courts have noted the fallacy in the employers' claim, the most recent being the 5th Circuit Court of Appeals in New Orleans — hardly a bastion of liberal jurisprudence. Last month, the court ruled that the requirements placed on religious-affiliated employers did not run afoul of the federal Religious Freedom Restoration Act, writing:
"Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith are those of third parties. Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise."
The Supreme Court is still reviewing similar cases, so the circuit rulings may not be the final word on the subject. Yet even when the justices have granted temporary relief to religious-affiliated employers, they have insisted that the federal requirement of free access to contraceptions remain in effect for the employers' female workers.