It’s been more than four years and 100 lawsuits since the federal government’s Department of Health and Human Services first proposed requiring religious institutions to include “free” contraception and early abortifacients in their health insurance coverage.
Only God (and the Government Accountability Office) know how much this administration has spent on this crusade. Almost certainly more than it would take to provide contraception to every woman and girl affected by its mandate.
Because it appears that the Supreme Court is about to write the concluding chapter to this story, it’s a good time to reflect upon the controversy and distinguish between what is at stake legally and what is at stake culturally. The latter is rarely considered.
If you read the briefs and opinions thus far produced in the lawsuits you will see two prominent legal questions. First, whether it is a “substantial burden” on religion—sufficient to trigger the Religious Freedom Restoration Act—to require religious institutions to communicate to their insurance providers that they must attach free contraceptives and early abortifacients to their health insurance plans. The government contends that the state gets to decide what does and does not burden religion; religions counter that the substance of religious conscientious objection is a theological matter outside governmental competence.
Second, if a court finds that the mandate burdens religion, RFRA requires it to decide whether the government can demonstrate a “compelling interest” in forcing these employers to insure for these drugs and devices. On the evidence, the government should fail this test. In its hundreds of briefs, it has never been able to show that the middle-class women and girls affected by the mandate (remember that poor women already get billions in free contraception) need free contraception for their health. I have read and analyzed every study the government has cited and relevant studies they have omitted. The former are either completely inapposite, incomplete or unwilling to draw the conclusions the government cites them for. The latter indicate that the government’s case is fatally flawed. Furthermore, not only do women fail to rank free contraception on their lists of “top 10 things women want,” but they can regularly be found complaining about the side effects of hormonal contraceptives, suing manufacturers or lamenting the government’s mistaking sex-divorced-from-kids for a women’s agenda.
Obviously, the legal effects of the mandate cases are important for the future of religious freedom. What is too little considered, however, is their cultural significance. In its briefs, and even more in its public messaging, the state continually claims that free contraception is synonymous with women’s freedom. Perhaps the low points were presidential campaign postcards urging women to “Vote like your lady parts depend on it! Because they kinda do!” and Colorado’s health exchange ads featuring a young woman saying: “OMG He’s Hot! Hope he’s as easy to get as this birth control.” And who can forget the federal government’s histrionic “war on women” rhetoric?
Religious employers are insisting only that the state allow the survival of competing visions of what promotes women’s well-being in the realm of sexuality. Could it possibly be the case—as the government claims—that it is better for every woman in America that there be no institutions left standing who hold that sex has weight largely because it is the place where every human being begins? And that the place where every human being begins—his or her family structure—is so very, very determinative of the chances in life a person will have?
At a time when The Washington Post editorial section is worried that women are suffering because of a lost understanding of what sex even means, when Vanity Fair asks whether we have begun the Dating Apocalypse (instant sex but no relationship), when the chairwoman of the Federal Reserve can write that contraception changes the mating market to women’s disadvantage—how could it possibly be true that the government should forbid other voices considering the welfare of women and children?
Whether or not you like the Catholic Church’s position on contraception doesn’t matter. The question is whether the state will leave standing any voice but its own on the question whether divorcing sex even from the thought of children is good for sex, good for women or good for children.