It took longer than expected, but the Trump administration finally moved earlier this month to provide broad exemptions to the Obama administration’s notorious HHS contraceptive mandate. The mandate requires employers sponsoring health-insurance plans to cover contraceptives, including some products that induce abortions, for all workers enrolled in their plans. The Trump administration issued two interim final regulations providing ready pathways for employers with religious or moral objections to get out from under the requirement.
These new regulations represent an important victory for religious freedom. Many Catholic institutions and other organizations have been working since 2011, when the Obama administration released its first version of the mandate, to secure exemptions from the requirements of the directive. Inexplicably, the Obama administration fought requests for legitimate exemptions every step of the way. The long-running standoff over the issue produced an avalanche of lawsuits, including two that went to the Supreme Court.
The Obama administration’s intransigence on the mandate was always perplexing from a policy standpoint. The administration had within its reach the ability to get 95 percent or more of what it wanted out of the mandate, with little political pushback, if it had been willing to provide reasonable exemptions from the rule’s requirements. Prior to the implementation of the regulation, the vast majority of employers were already providing expansive coverage of contraceptives in their insurance plans. The HHS mandate simply codified in regulation what was already the prevailing practice.
Most employers had no objection to the new rules. They long ago internalized the perspective that animates the push for this kind of social policy. It is simply not questioned by most people in the United States that creating an entitlement to free contraception, seemingly paid for by somebody other than the employee (even if the cost of the employee’s health coverage actually comes out of his paycheck), is of course a good idea. The vast majority of employers were never going to object to the HHS mandate because they subscribe to the worldview that created it.
It was entirely predictable that Catholic organizations would believe they could not comply with the rule without compromising their integrity.
It should have been easy for the Obama administration to make a broad concession to Catholic sensibilities. To begin with, there aren’t that many Catholic employers in the country. Total employment in Catholic-affiliated organizations like universities, hospitals, and schools is around 1 million people, or 0.3 percent of the total U.S. population. Further, before the mandate, there were countless ways for individuals to secure all manner of contraceptive services and products, generally at very little cost. Moreover, the government heavily subsidizes the direct provision of such products and services to persons of limited means through existing public programs. It would have changed very little in practice if the Obama administration had simply agreed to grant a broad exemption to Catholic organizations and others with legitimate reasons to opt out.
But the Obama administration chose to fight efforts to secure such exemptions for political and ideological reasons. The president and his team were eager to have an issue they could use to rally their base of supporters in the run-up to the 2012 election. They accused supporters of a broad religious exemption of engaging in a “war on women,” using such rhetoric in their get-out-the-vote efforts during the campaign. Many Obama administration officials also viewed the church’s position as illegitimate, and therefore not worthy of accommodating.
In response to the Obama administration’s aggressive stance, leaders of scores of Catholic organizations believed they had little choice but to fight in court. As the lawsuits piled up, the right to defend the integrity of these institutions became a cultural rallying cry and a symbol of the struggle against an overbearing government.
The issuance of the Trump administration’s new rules represents a victory for the Catholic organizations who refused to give up the fight during the Obama years. Their decision not to comply with the HHS mandate has been vindicated, for now. More lawsuits from the mandate’s defenders could drag the issue out for many more years.
There’s a lesson to be learned from this saga. When politicians and parties engage in pointless cultural conflict for political purposes, there can be short-term rewards for those who initiate the fight. But the opposing side is often energized by the struggle, too, and usually initiates a counteroffensive to regain lost territory. Skilled politicians secure lasting victories by defusing the opposition rather than energizing it.
Perhaps this is a lesson the Trump administration should internalize. The president is nothing if not a skilled practitioner of pointless cultural conflict. He may learn that trampling over the sensibilities of his opponents is great for rallying his troops, but the other side’s troops are listening too, and their deep resentments won’t be forgotten anytime soon.
— James C. Capretta is a resident fellow and holds the Milton Friedman Chair at the American Enterprise Institute.