Thursday, July 3, 2014

The Contraception Mandate: The Supreme Court Hobby Lobby Decision's Five Ironies

Much of the commentariat's dismay over the setback of Obamacare's contraception mandate has been based on the twin principles of women's health and economic justice.  But for an unthinking Supreme Court majority, says critics, the U.S. lost an important chance to link federal health policy to the enlightened science of preventing unwanted pregnancies.

Which leads to five ironies:

1) The Supreme Court Justics would agree that they know little about health or economics: It was the conservative Mr. Scalia who opined in another case involving health care that the issue at hand was not "known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory." 

No one should be surprised that the Supremes focused on the law.

2) This isn't about health or economics, but ultimately about Progressivism: In this timely Wall Street Journal essay, Charles Murray distinguishes between classic liberalism and progressivism.  The latter was first championed by President Woodrow Wilson and, decades later, still promotes a reliance on disinterested experts to mold social policy in the interest of collective well-being. One tradition of progressive thought is that the Constitution is ill-suited to the eminently rational work of those experts. 

Progressivists everywhere are going to view the Hobby Lobby decision as a vindication of their long-held beliefs.

3) The Affordable Care Act is untouched: Contrary to popular opinion, the text of the Affordable Care Act makes no mention of contraception. Rather, it outsources the creation of an "essential health benefit" to Health and Human Services. In a classic exercise of modern progressivism, its experts - not Congress - used a regulatory process to determine that significant religious considerations should not stand in the way of women's public health and first dollar coverage of the pill.

Repeat: the Affordable Care Act is untouched.

4) Blame Bill Clinton: As the PHB understands it, the experts in Health and Human Services never contested that Hobby Lobby's owners were deeply religious or that oral contraceptives also prevented implantation of a fertilized egg, i.e., led to an abortion. When that was examined under the requirements of Religious Freedom Restoration Act that was originally signed into law by Bill Clinton, Mr. Alito managed to craft a 5 to 4 majority.

By the way, at the time RFRA was passed, both chambers also had Democratic Party majorities.
5) When It Comes to Experts, You Get What You Pay For: For better or worse, when competiting interests lead to winners and losers, we turn to our court system. Since it's unlikely that the U.S. is going to dismantle its legal system, experts would be best advised to craft compromises that accommodates reasonable constitutional threats to their reasoned planning.

Congress is probably going to step in and do what its outsourced Executive Branch experts should have done in the first place: reconcile the RFRA and access to contraceptives.  We deserve better from HHS.

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