As a health law professor who teaches a course on women’s health care issues, I have been following the ACA contraceptive mandate debate with great interest and more than a little trepidation. I admit to rather mixed feelings about the outcome: disappointment, relief that the decision wasn’t broader (at least on its face), concern for what comes next, and frustration regarding the choices that created this situation in the first place. With the benefit of hindsight, I can’t help wishing we’d found another way right from the start.
Many aspects of the contraceptive mandate debate have long struck me as curious. For one thing, it’s clear that the government does indeed have less restrictive alternatives to ensure broad access to low- or no-cost contraceptives. The Obama Administration could have extended to closely-held religious corporations the same accommodation it offered to religious non-profits, which essentially requires insurers to cover these costs. Whether the Administration should do so now, before the Court has squarely addressed the wide-open question of the sufficiency of that accommodation, is a different matter, however. Others have suggested alternative means to provide access to contraceptives, ranging from government-funded distribution to tax credits. Each has disadvantages, of course, and I can understand how the mandate would appear to be a more efficient option. But that choice relied heavily on the assumption that RFRA would not be applied to corporations – an assumption that, in a post-Citizens United world, was a risky proposition. * * *
Does Hobby Lobby spell the end of the ACA, or the end of contraceptive access for women? Clearly not. But with the benefit of hindsight, I can’t help wishing we’d found another way right from the start.
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