The Obama administration has consistently bent over backwards in its efforts to appease the religious liberty concerns of employers who complain that the birth control benefit and the existing workaround are violations of their religious faith. And on Friday, with the release of yet another set of interim final regulations, the Obama administration has ostensibly provided another option for eligible organizations to avail themselves of the accommodation. But in reality, what the administration has done is shot itself in the foot—again.
What exactly is the Obama administration’s strategy here? To keep offering more and more accommodations—more and more compromises in the hopes that religious objectors to contraceptive coverage will be mollified?
If history is any indication, that’s not going to happen any time soon.
As any good negotiator will tell you, when you’re in a negotiation with an obstinate party, it is important to assess the goals of that party and come up with a strategy for making sure that you get what you want. This is called a “concession strategy.” If one party to a negotiation is immovable and the other party is a pushover, the immovable party will inevitably walk away having gotten everything they want while the pushover is left with nothing.
Usually, pushovers are so eager to make a deal that they begin the negotiation without a concession strategy; they will offer a deal, and when it is rejected they will immediately concede their position and offer another deal. When that deal is rejected, pushovers will concede their position again and again until there’s nothing left to concede.
In the battle between the Obama administration and the religious right, the Obama administration is the pushover, and the religious right is the immovable party.
The Department of Health and Human Services has made concession after concession in an effort to ensure all women have access to affordable birth control, while the religious right has remained immovable, demanding acknowledgement of their religious beliefs above the health, well-being, and rights of women.
Friday’s concession—detailed here by my colleague Jessica Mason Pieklo—is no different.
In a traditional negotiation, the concessions being made harm the party making them. In the case of the birth control benefit, however, the concessions that the Obama administration keeps making aren’t really harming the Obama administration itself—they are harming the women that the policy is intended to benefit.
For two years, the administration has attempted to work in its own version of good faith with religious objectors—primarily the religious right and the Catholic bishops—who claim that requiring employers to provide birth control to their employees violates the religious faith of those employers. And for two years, these religious objectors have remained unsatisfied with each and every concession offered to them, even when those concessions were originally suggested by the religious objectors themselves.
After an outcry by the religious right and the Catholic lobby when the birth control benefit was first announced back in February 2012, the administration’s willingness to work with these religious objectors and to take their religious feelings into account seemed like a good idea, at least politically.
The 2012 presidential election was less than a year away, and Republicans were busy trying to fire up their base by accusing President Obama of waging a war on religion.
In March 2011—a few months before he jumped into the presidential race—Newt Gingrich, who had been yowling about President Obama’s supposed anti-colonial views, warned thousands of evangelical churchgoers that Christianity was under attack and that the country was on the road to domination by secular atheists and radical Islamists.
In early December 2011, Republican presidential nominee Rick Perry released a truly ridiculous television ad, in which he bemoaned the fact that gays can serve openly in the military but kids can’t openly celebrate Christmas or pray in school, and pledged to end Obama’s “war on religion.”
Later that month, the United States Conference of Catholic Bishops took out full-page ads in the Washington Post and New York Times in which 151 Catholic leaders of all stripes responded to the HHS “Preventive Services” Mandate—scare quotes and all—and demanded that the Obama administration protect conscience rights.
A day after that, a large group of “pro-life,” evangelical, and other leaders of faith-based organizations joined the fray to let the administration know it wasn’t just Catholic organizations that were opposed to the birth control benefit
; they, too, feared infringement on their religious freedoms.
The Obama administration was being slammed by claims from Catholics and evangelical Christians alike that its contraception policy demonstrated that the administration was hostile to religion. And at the time, with headlines like “Catholic Church vs. Obama in Election Year Showdown” saturating the news cycle, doing something—anything—to appear respectful of religious freedom while at the same time
making certain its policy of ensuring that women would have access to preventive services, including contraception, without co-pay seemed like the best course of action for the administration.
And so the administration blinked. It crafted an accommodation for religious objectors and set itself up for a series of legal disasters that would follow.
Under the accommodation, certain religious groups who oppose providing contraceptive coverage can simply hand that job over to their insurance companies after declaring their religious opposition by filling out a form—Form 700.
This accommodation seemed sensible enough. Unfortunately, it initially satisfied some religious groups but not others.
The Catholic Health Association (CHA), which represents over 600 hospitals and 1,400 other health facilities, and is the largest group of nonprofit health-care providers in the United States was appeased. “The Catholic Health Association is very pleased with the White House announcement that a resolution has been reached that protects the religious liberty and conscience rights of Catholic institutions,” said the group’s president and CEO, Carol Keenan, when the accommodation was first announced in February 2012.
Four months later, however, the CHA did an about-face: It sent a five-page letter to the Department of Health and Human Services opposing the compromise.
The Catholic bishops, on the other hand, remained stalwartly opposed to the compromise throughout the Obama administration’s attempt to negotiate a compromise that would appease all involved parties, claiming that compliance with the accommodation would be “material cooperation with evil.”
According to the bishops, it doesn’t matter whether you’re taking birth control, providing birth control to women, or facilitating some process by which birth control is provided to women; all of these violate the Catholic faith, no matter how distant or uninvolved the Bishops are from “the act.” Never mind that, according to the Guttmacher Institute, 98 percent of Catholic women ages 15 to 44 who have had sex have used a contraceptive method other than natural planning, 68 percent of Catholic women and 74 percent of Evangelical women use “highly effective” methods of birth control—sterilization, hormonal birth control, or intrauterine device (IUD)—and 69 percent of women of all religious faiths use such highly effective methods.
Ultimately, the religious right’s staunch opposition to contraception does not reflect the reality of its use among women, some of whom work for the very organizations that are seeking to deny them the birth control benefit.
To date, 65 cases challenging the accommodation have been filed by non-Catholic and Catholic religious organizations, many of which receive federal funds and/or tax breaks to be in the business of denying benefits for the people who work for them. They argue that the accommodation essentially works as a “permission slip” for contraception, and does not adequately separate the religious organization from the flow of contraception between their insurers and their employees.
The most notorious of the lawsuits challenging the accommodation was filed by the evangelical Wheaton College, which, like the University of Notre Dame, offered contraception coverage in its health insurance plans before deciding that to continue to do so in compliance with the birth control benefit would violate its religious liberty. A mere four days after the Supreme Court ruled against the government in Hobby Lobby—citing the accommodation as the reason—the Supreme Court signaled in its Wheaton College order that the accommodation itself might also be a violation of religious liberty.
In blocking the government from applying the accommodation to Wheaton College, the Court said Wheaton College did not have to fill out the self-certification form, Form 700. Wheaton College could simply inform the Department of Health and Human Services of its religious objections in writing.
That ruling prompted outrage from Justice Sonia Sotomayor—Sharona Coutts and I published a story about that in late July—but it also prompted the government to capitulate once again to the religious caterwauling of those opposed to its contraception coverage policy.
Some commentators took the Court’s ruling in Wheaton College to be an invitation to further tweak the accommodation to the birth control benefit. And given today’s release of further tweaks to the birth control benefit and accommodation, the government did too.
I fail to see why.
Even though the Court blocked application of the accommodation to Wheaton College, it expressly stated that its ruling was not on the merits: “[T]his order should not be construed as an expression of the Court’s views on the merits.”
In other words, after full consideration, the Court very well could have found that Wheaton College’s objections to filling out the self-certification form have no merit and might have allowed the government’s accommodation to stand.
But the Obama administration—pushover that it is—didn’t bother waiting for the Supreme Court to issue a final ruling in the Wheaton College case. (That will likely happen during the Supreme Court’s next term.)
Instead, taking its cue from the Supreme Court’s Wheaton College order, the administration released new regulations allowing eligible organizations to inform the Department of Health and Human Services in writing of their religious objection to contraceptive coverage so that, as before, a third party can step in and provide that coverage in the religious objector’s stead. In its rush to appease these religious objectors, did the Obama administration stop to think that perhaps these religious objectors cannot be appeased because they are immovable? Has the administration learned nothing from its previous negotiations with the religious right?
The Obama administration’s willingness to accommodate religious objectors has done enough damage.
First and foremost, offering more and more concessions simply sanctions employers’ efforts to deny employees their right to earned health benefits, all in the name of “religious liberty.”
In addition, these concessions have led to disastrous results in court: The accommodation provided the U.S. Supreme Court the ammunition it needed to rule in favor of closely held for-profit corporations like Hobby Lobby and Conestoga Wood, which had complained that they were “persons” under the Religious Freedom Restoration Act and that the birth control benefit forced them to violate their faith. According to the Supreme Court, the very existence of the accommodation allowing for religious exemptions from the birth control benefit necessarily meant that the birth control benefit itself was not the “least restrictive means” of ensuring that women would have access to contraception without co-pay. And that was the key reason for the administration’s profound defeat in Hobby Lobby.
By further tweaking the accommodation, the administration has all but admitted that the current iteration of the accommodation will fail the “least restrictive means” test once the Wheaton College case winds its way back up to the Supreme Court, just as the birth control benefit failed that test in the Hobby Lobby case.
So why is the administration forcing the error? Does the Obama administration have a concession strategy, or is it simply going to keep bending to the religious right’s will and, in so doing, undermining women’s reproductive rights?
The Obama administration should have allowed the courts time to sort out the current contraception conundrum because if history is any indication, there’s no concession that the Obama administration can offer the immovable religious right that will make them happy.
So rather than try, the Obama administration should have just let the legal chips fall where they may.
Instead, the Obama administration has opened itself up to a host of new lawsuits that jeopardize its ability to maintain its commitment to providing a full range of reproductive health-care benefits—including contraception—to the women who have earned them.