In the last few days, I’ve seen a number of observers—even people opposed to the administration’s willingness to force religious charities to act contrary to their moral convictions—say that conservatives should stop short of advocating that all employers, regardless of their religious character, have the freedom to decide whether to offer contraceptive coverage to their employees. An exemption that extends beyond religiously affiliated charities, warns Michael Gerson, would be “an overreach,” “a bridge too far in our current cultural and political context.”
Allowing employers to make decisions of this kind without the interference of federal law would be as extreme as. . . current federal policy, which offers exactly that freedom. There were no federal mandates on contraception until Obamacare narrowly passed the House with no explicit contraceptive mandate. (It would probably not have passed had it contained one.) Today’s controversy concerns the administration’s decision to use the Obamacare law to create this mandate.
Under current federal policy, an employer may choose not to provide contraceptive coverage. Moreover, Ed Whelan makes a strong case that the contraceptive mandate is illegal not only as applied to religious charities but as applied to employers with contrary religious convictions. The Religious Freedom Restoration Act—passed with near unanimity by Congress and signed by President Clinton—protects the freedom of these employers, and it includes a provision requiring that any future law be read as compatible with it unless it includes an explicit override.
The ability of employers to make these decisions has not led to sectarian strife or a crisis of contraceptive inaccessibility. And every Republican who has pledged to repeal Obamacare is already on record opposing the contraceptive mandate unless he adds that he wants to pass a new law authorizing one. It is not extreme to insist that religious freedom be left as robust as it was before Obamacare was enacted.