By November, nobody is going to remember who Sandra Fluke is. That’s what Republicans need to keep in mind as they judge the political impact of opposing the Obama administration’s latest health-care mandate. The issue is likely to help Republicans in the fall, if they can keep their wits about them.
They’re not doing that right now. Instead, they’re overreacting to two mistakes that opponents of the mandate have made. Both involved Fluke. After the Obama administration announced that it would require almost all employers to offer insurance that covers contraception, abortion drugs, and sterilization, whether or not those employers have moral objections, Representative Darrell Issa (R., Calif.) held hearings before the government-oversight committee he chairs. The Democrats requested that Fluke, a Georgetown Law School student and liberal activist who favors the mandate, testify. But the request was denied as too late. Since one of Issa’s panels had no female witnesses, the Democrats then used the incident as an illustration for their story that Republicans are waging a “war on women” by resisting the mandate. Press coverage was brutal. Since then, Issa has been telling his House colleagues to avoid the issue, and many of them have done so.
Then Rush Limbaugh gave the Democrats an even better illustration by calling Fluke a “slut” and a “prostitute” and saying that she should broadcast her sexual encounters so that those forced to pay for her contraception could view them. After several days of intense criticism, he apologized. In the interim, President Obama called Fluke to offer her moral support. Republicans got even wobblier. As the Limbaugh controversy raged, Senator Lisa Murkowski (R., Alaska) told reporters that she now regretted voting to overturn Obama’s mandate.
A strand of liberal opinion has long insisted that social conservatives are opposed to contraception — are waging a “war” on it, even — and that the public would rise up against them if informed of the fact. The conjunction of the fight over the mandate and the success of Rick Santorum in the Republican primaries helped them make their case. Santorum had said in the fall that if he were elected president he would denounce contraception. He has subsequently backed off this cause, and no other Republican of note ever adopted it, but his comment lent credence to the liberal spin.
The White House initially seemed surprised that liberal Catholic journalists and politicians had joined the bishops of the Church in criticizing the mandate, but it quickly found a way to divide Catholics. It announced that it would at some future point issue new rules that would supposedly enable religious institutions to avoid paying for services they oppose. Instead the insurers would pay for them. To call this arrangement an accounting gimmick would be an insult to CPAs. But some liberal Catholics — notably the head of the Catholic Health Association, who had previously given her blessing to Obamacare — were willing to sign off on the administration’s attack on conscience rights as long as it lightly disguised it. Media coverage has tended to treat the administration’s PR stunt as though it were a substantive compromise.
Having neutralized some opponents and watched Republicans stumble, the Democrats think that they are winning this fight. Democratic pollster Doug Schoen thinks that “the issue of access to contraception” could cost Republicans the chance to take the White House and the Senate this fall. Timothy Noah writes in The New Republic that Senator Marco Rubio (R., Fla.) has damaged himself as a vice-presidential pick by helping to lead the opposition to the mandate. Noah’s colleague Alec MacGillis warns that Senator Scott Brown (R., Mass.) will rue the day Republicans joined this fight.
Inconveniently for this thesis, Senator Brown has been moving up in the polls as this battle has raged. There is no Senate race in the country where the issue has been more prominent. Brown has taken a strong stand against the mandate and gotten criticized for it by his leading Democratic opponent, Elizabeth Warren. In a strategy memo released for public consumption, Brown’s campaign manager, Jim Barnett, argued that Warren had hurt herself by becoming a liberal “culture warrior” on the issue. Looking at the polls, Boston Globe reporter Frank Phillips concluded in early March that “Brown may have benefited from his positions on social issues in the last few weeks, such as the one over whether Catholic institutions should be forced to provide contraception in their health care plans for workers.”
Barnett’s memo noted that in standing against the mandate, Brown stood with three Senate Democrats: Bob Casey (Pa.), Joe Manchin (W. Va.), and Ben Nelson (Neb.). Only one Republican moderate, Olympia Snowe (Maine), voted to keep the mandate. Add Murkowski to Snowe and there’s still nothing like the pattern you would expect if this issue were cutting strongly in favor of the Democrats.
Polling does not suggest overwhelming public support for the Democratic position, either. An NBC/Wall Street Journal poll in early March asked respondents what they thought of “the federal government requiring health insurance plans for the employees at Catholic and other religiously affiliated hospitals and colleges to offer free birth control coverage and mandat[ing] that the health insurance company pays for that cost.” Result: 38 percent favored that idea, and 45 percent opposed it. A question that mentioned that the morning-after pill would also have to be covered yielded 34 percent support and 49 percent opposition. The Hill, a newspaper centered on Congress, released a poll on February 23 that asked respondents whether what it described as the “recent contraception debate” had made them more likely to vote for Obama or for the Republican candidate. Thirty-five percent were more pro-Obama, 36 percent more pro-Republican. That was a pre-slutgate poll, and the results might be different now — but if so it would just underscore the point that when the country is considering the mandate itself, rather than side issues, it is not a clear winner for the Democrats.
Political strategists will be looking closely at two groups to see if they will change their voting behavior in response to this debate. The Democrats are fairly obviously trying to use the issue to court single women. They vote heavily for the Democrats — much more so than married women, who sometimes even vote narrowly for Republicans. But they have not traditionally been very interested in politics. The hope for Democrats is that the false drama of a war on contraception will motivate these women to show up to vote.
But it’s not clear it’s working out this way. On March 10, the Washington Post ran a front-page story suggesting that the mandate had caused women to move toward Obama — though it conceded that their movement toward him preceded the emergence of the issue. In fact, almost all of that movement preceded it. Two days later, the Post released the results of its own polling, which showed both women and men turning slightly against Obama during the weeks of the mandate debate. A New York Times/CBS News poll found that women, by a 53 percent–to–38 percent margin, believe that religious institutions should be able to opt out of covering birth control; a 46 percent–to–44 percent plurality believe that any employer should have this right.
The risk for the Democrats is that even if they increase turnout among a portion of their base, they will also alienate Catholic swing voters. The Democrats believe that the liberal Catholics’ endorsement of the mandate will help them with this group. In the long run, this type of divide-and-conquer strategy cannot work, because it depletes the credibility of liberals within the Catholic Church. If more and more Catholics come to see liberal Catholics as not only unwilling to defend their church’s teachings but unwilling to defend the institution from assault, the liberals will have fewer and fewer voters to deliver to Democratic politicians and thus be less and less worth co-opting. In the short run, however, there is no question that the split among Catholics helps the administration.
Opponents of the mandate can take several steps to increase their chances of persuading voters to side with them. Too many of them have acquiesced to the White House/media line that what’s at issue is a “contraceptive mandate.” The mandate also covers the drug ella, sometimes dubbed “the week-after pill,” which induces abortion. It is to the great credit of non-Catholics such as Senator Roy Blunt (R., Mo.), the sponsor of the Senate bill to overturn the mandate, that they have stood in defense of the freedom of Catholic institutions. But it is not just Catholics who object to abortion drugs, and highlighting their inclusion in the mandate would broaden the anti-mandate coalition. It is also worth noting that if the administration is correct in claiming it has the legal authority to impose this mandate, it has the authority to require coverage of surgical abortions as well. Only political prudence has stayed its hand so far.
Voters generally dislike arguments about social issues, and tend to oppose whichever side they perceive as the aggressor in a fight over them. Proponents of the mandate have skillfully exploited this fact: That’s the point of their claims that Republicans are waging a war on women, and it’s why the Limbaugh comments were so damaging. During the debate over Blunt’s amendment, Democrats made it sound as though it would work a radical change in American law by allowing employers to veto their employees’ contraceptive decisions. Republicans did not do enough to make the case that all they were doing was preserving current policy. From the dawn of the republic until this very moment, no federal law has required any employer to provide insurance with coverage he finds objectionable. This freedom has not left Americans deprived of contraception or forced them to get permission from their employers to use it. It is this benign status quo that the Obama administration’s regulation will upset.
Republicans would also be wise to reiterate their support for access to contraception. Writing in Bloomberg View, libertarian journalist Virginia Postrel has argued that there is no good reason to continue to require women to get prescriptions to buy the birth-control pill. Perhaps Republicans should undercut the Democratic attack by advocating a Food and Drug Administration review of the policy.
The mandate should also be tied to Obamacare, the unpopular law that gave rise to it and that it perfectly illustrates. (The mandate authorized the Secretary of Health and Human Services to determine what “preventive services” insurance should have to cover, and she decided to include contraception, sterilization, and abortion drugs. Note, however, that even the Congress of 2009–10, the most liberal one in decades, refrained from actually enacting this allegedly popular, commonsensical mandate.) The law places coercive authority over sensitive matters in the hands of unelected bureaucrats, and it has the potential to cause both needless strife and diminutions of freedom.
The political parties are in effect placing a bet on whether Americans will mostly come to see the mandate in terms of religious freedom or in terms of women’s right to contraception. Some of the factors that make the Democratic bet look smart right now will fade over time. Santorum, for example, is likely to be out of the picture in the fall. The Catholic bishops have staying power, if they choose to use it. They can ask every parish in the country to include, among the prayers of the faithful at Mass, the plea that political leaders will respect the conscience rights of religious institutions — and they can do it every week. The narrative of imperiled access to contraception, on the other hand, may be hard to sustain for an entire year, contradicting as it does the lived reality of American life. The administration is committing a crime against conscience. It may turn out to have committed a political blunder as well.
— Ramesh Ponnuru is a senior editor of National Review. This article appears in the April 2, 2012, issue of National Review.