What Pro-Lifers Won, and Didn’t

by Ramesh Ponnuru

Avik Roy argues that pro-lifers and opponents of Obamacare “haven’t won a thing” in Hobby Lobby. He says that the Supreme Court “endorsed” a version of the Obama administration’s mandate — its “accommodation” of religious institutions — that many conservatives have denounced. I don’t think that’s right: Alito’s majority opinion does not “endorse” the accommodation. The Religious Freedom Restoration Act says that conduct exemptions from laws and regulations must be granted when they impose a substantial burden on faith and when there are less restrictive means of advancing a compelling governmental interest. Alito argues that the exemption shows that there are less restrictive means available, and thus exemptions from the full-blown mandate are required. He explicitly denies judging the question of whether the accommodation itself can survive RFRA. Justice Kennedy’s concurrence is (surprise!) murkier, and some observers worry that it signals his openness to the accommodation. But even that concurrence does not definitively endorse it. (Ed Whelan has a lot more worth reading on this issue.)

Roy continues: “[W]hile the government can’t compel Hobby Lobby to finance abortifacients, it can compel taxpayers to do so. Isn’t that a distinction without a difference?” I think there is a difference. The government can let pacifists out of military service without letting them out of paying taxes to support the military, and nobody believes that distinction meaningless. Pro-lifers should object to having their tax dollars spent on abortifacients. But it’s worse for pro-lifers to be forced to offer insurance that covers them. It’s worse because it requires more direct cooperation on their part, and because it carries a greater risk of communicating an untruth about their moral conviction.

Roy’s arguments and mine bear a family resemblance to ones that got aired during the debate over the individual mandate. Most opponents of it argued that there was a difference in principle between being forced to pay taxes that are then used to provide insurance and being forced to buy insurance. If you think that argument holds up (as I do, and most conservatives do), the distinction holds up here as well.