Judging from the outrage that followed the rollback of the contraceptive mandate imposed by the Department of Health and Human Services, you might think Donald Trump had signed an executive order making it a felony to purchase birth control.
“Under the guise of protecting religious freedom and moral sensibilities, the Trump administration is making it harder for women to get access to birth control,” the New York Times editorial board wailed last Friday, lamenting a move that will, according to them, “hurt millions of people.”
An article in HuffPost employed similarly dramatic tones, ridiculing the rollback with incredibly flawed “expert” assessments of the Catholic Church’s moral teaching on birth control. (The piece’s title, of course, renders “religious liberty” in scare quotes, connoting the ridiculous progressive belief that religious liberty is a fiction invented to rob Americans of civil rights.)
And a ThinkProgress report insisted that the HHS “rules are deeply damaging to women’s reproductive health, and reflect a wider trend of the Trump administration attempting to dismantle women’s access to health care.”
This vague phrase — “years of progress” — intentionally obscures the fact that we’ve witnessed all of four years of such “progress.” Until the Obama administration enacted the contraceptive mandate in 2012, birth control had never been singled out for protection, let alone for protection so strong that Catholic nuns were forced to sue the federal government for relief.
It is worth noting, too, that the mandate didn’t even make birth control a true entitlement, despite efforts from Democrats to cast it as one. This rule was initially tacked onto Obamacare by the HHS, not passed as a substantive part of the law. That makes it nothing more than a voluntary insurance regulation that can change from administration to administration, depending on the executive’s decision alone.
Last week’s expanded exemptions didn’t abolish the mandate, and no one in the Trump administration has indicated any desire to do so. If, as Greenhouse jibed, conservatives were unilaterally opposed to birth-control access simply because it “empowers women,” wouldn’t the HHS have ended the mandate altogether?
Instead, it offered authentic exemptions to employers — those pesky Catholic nuns, for one — whose faith teaches that abortifacient drugs or contraceptives are immoral. To make the situation appear far more dire than it is, many progressives overstate the reach of the exemptions.
Far from setting a dangerous precedent, the exemptions represent a necessary effort to balance religious-freedom rights with other public interests.
“Any ‘entities’ that claim not only religious but also ‘moral’ objections to birth control are entitled to refuse to comply with the federal contraception mandate,” Greenhouse wrote Tuesday. And the HuffPost piece asserted: “All employers may now opt out of including birth control in their health coverage for employees for any moral or religious reason.”
Neither of these claims is correct. For one thing, publicly traded for-profit companies are not permitted exemptions on moral grounds. The “moral” category is intended to protect small groups such as the Susan B. Anthony List or Hobby Lobby, neither of which is religious but whose employers believe that some forms of contraception are immoral.
Far from setting a dangerous precedent, the exemptions represent a necessary effort to balance religious-freedom rights with other public interests. The 1993 Religious Freedom Restoration Act established, and subsequent court cases confirmed, that the burden rests on the government to prove that a public interest is compelling enough to justify infringing on the First Amendment’s religion clauses.
The Obama administration and the Left more broadly have failed to show that birth control, provided free of cost by one’s employer, is a right crucial enough to merit forcing religious business owners to violate their consciences. Given that many forms of contraception are widely available and relatively affordable, it’s highly unnecessary to coerce religious Americans into providing it.
Far from allowing businesses to escape any federal law by claiming a religious objection, as Greenhouse and others have erroneously declared, the HHS exemptions are based on narrow criteria and grounded in the same respect for religious free exercise that has undergirded American democracy since the founding.
The truly frightening precedent is the one Obama set by enacting this mandate in the first place and stubbornly refusing to provide substantive religious exemptions from it. The slippery slope on this issue is the exact opposite of what progressives attest: It is far more plausible, and far more concerning, that religious Americans might be coerced into violating their faith than that millions of American women might be without contraception as the result of stringent religious employers.
Consider state laws and lawsuits across the country attempting to force Catholic hospitals and doctors to perform procedures their faith forbids — abortions and sex-reassignment surgeries, for example. The Left is increasingly dissatisfied with the mere availability of these “civil rights”; they want these rights to be funded and facilitated even by individuals with sincere moral objections.
The Left appears to believe it self-evident that the right to contraception is inviolable and merits the effort to press religious Americans into its service. But U.S. law and jurisprudence forbid such coercion without first providing a compelling public interest. To demonstrate one, the Left will have to improve on the disingenuous scare tactics Greenhouse and her fellow progressives have offered.
— Alexandra DeSanctis is William F. Buckley Fellow in Political Journalism at the National Review Institute.