Senator Mike Lee: Obama Might Create Government Program to Pay for Contraception

by Joel Gehrke

President Obama is rumored to be planning a government program that would provide free contraception as a result of the Supreme Court’s ruling that the Department of Health and Human Services cannot mandate family-owned businesses to provide contraception and abortifacients to employees when the owners have a religious objection to the service.

“I’ve heard rumors to the effect that they’re going to announce that there will be a government program that will use federal funds to cover anyone who loses coverage as a result of this ruling,” Senator Mike Lee (R., Utah) told National Review Online. Conservatives might not like that use of government funding, “if they do that, I don’t think anyone would argue that that would fall afoul of this decision,” he said.

The Supreme Court’s majority opinion noted that the possibility of creating such a program was one of the reasons that Obama’s team failed to prove that the HHS mandate was was the least restrictive means of pursuing the goal of providing women with contraception.

“HHS’s view that [the Religious Freedom Restoration Act] can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law,” Justice Samuel Alito wrote for the majority.

Justice Anthony Kennedy doesn’t seem to like that idea. “In discussing this alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program,” he writes in his concurrence. ”The Court properly does not resolve whether one freedom should be protected by creating incentives for additional government constraints.”  

Lee suggested that the court’s ruling bodes well for the Little Sisters of the Poor, a non-profit that HHS regards as a beneficiary of its accommodation that has filed a class-action lawsuit against the mandate nonetheless.

“I don’t see the Supreme Court being willing to do what it did in Hobby Lobby today and unwilling to provide relief to a non-profit who is being asked to provide the same type of coverage, just going through an insurance company,” he said.

Obama announced that HHS would develop an “accommodation” of religious organizations moral objections to contraception or abortifacient drugs, but that didn’t satisfy the nuns.

“Under this, an objecting organization will notify its insurer or plan administrator, which will make payments to employees for the mandated contraceptive services,” explains The Becket Fund for Religious Liberty, which represents both the Little Sisters and Hobby Lobby. ”The rule insists these payments are not ‘benefits’ and are separate from the organization’s health plan. Nonetheless, the accommodation means that employees are guaranteed payments for objectionable services, specifically because they are covered under the organization’s plan. Furthermore, the accommodation requires a self-insured organization to ‘designate’ its plan administrator as an agent who will make or arrange for payments for the mandated services. This ‘accommodation’ fails to solve the moral problem created by the mandate for many religious organizations.”

Ed Whelan notes a line from Alito’s opinion that he thinks gives hope to the nuns’ challenge against the accommodation.  “We do not decide today whether [the accommodation] complies with RFRA for purposes of all religious claims,” Alito wrote.