an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Affordable Care Act requires all health insurance plans (except grandfathered plans) to cover the entire cost of certain preventive medical services, with no co-pays. This list includes, among many other things, birth control. This has led to a massive political firestorm. Should all women, regardless of employer, have access to birth control with no out-of-pocket costs? Or should religiously affiliated employers with religious objections to birth control be exempt from this requirement as a matter of religious freedom?
On Friday, President Obama announced a clever compromise: yes to both questions. Yes all women should have access, and yes religiously affiliated employers should be exempt (and not only churches, who got a narrow exemption from the previously announced version of the rule, but also religiously affiliated hospitals and health care systems and universities). Where a religiously affiliated employer objects to birth control, it need not provide it or pay for insurance that provides it. Instead, the insurance company must, on its own initiative, provide the birth control to the women at no cost to them. (For insurance companies, this is not such a bad deal. Because childbirth and dependent care coverage are very expensive, and birth control pills are comparatively cheap, an insurance company that manages to pay for slightly fewer pregnancies and births as a result of paying for birth control might come out even or ahead.)
The reason this compromise is clever is that each side gets the main thing it says it wants. Reproductive rights advocates win on access. Employees (and families of employees) of large Catholic hospital systems, for example, will have the same access to birth control that other women will have. At the same time, religiously-affiliated institutions win their exemption from a generally applicable law. They win the right not to participate in something to which they deeply object. But neither side can be completely pleased with this deal, because this fight was never exclusively about these two concerns. It was also about the politics of recognition. But recognition of what?
For feminists and reproductive rights advocates, this fight is about equality—about “the right of individual women to be free from discrimination in their health care plans.” From this point of view, part of what is at stake here is the normative principle that the full panoply of gynecological health services, from STD testing and treatment to contraception, is part of the same continuum of basic health care. A health care system that treats certain services having to do with women and sexuality differently than it treats all other services is a discriminatory health care system. In this connection, the Physicians for Reproductive Choice and Health note that “[b]irth control pills are not just for contraception—they help manage conditions like [this patient’s] as well as lower the risk for certain cancers. All families need affordable access to medications that safeguard their health, including birth control.” The strongest (and most strongly feminist) version of this argument is that control over reproduction is essential to equality; therefore reproductive health care must be treated the same as all other health care. From this point of view the new Obama compromise is unsatisfying. It treats one segment of women’s health differently from all others, separating it out and dignifying the view that it is morally different and perhaps more objectionable.
For quite a few male Catholic commentators—and others concerned with religious liberty here even if they disagree with the Church on contraception—an entirely different principle was at stake. The principle was, in part, the idea that “religion is not something we do only on Sunday and only for ourselves. We do not just hear sermons about helping the poor—we seek to do something to actually help the poor. And, so, we have built a vast network of charities and social-service providers.” The original Obama administration proposal had carved out a narrow exemption for churches that only covered nonprofits whose purpose was “inculcation of religious values” and that primarily employed and served people of the same faith. This struck some as an insultingly narrow view of what religion is about. As E.J. Dionne put it, “some of the things that Catholics, liberals especially, but not just liberals, are proudest of that the church does [are] the things they do for people who aren't Catholic, for the poor, for immigrants, for refugees, for the people who are sick…” In terms of the politics of recognition, this group got everything it wanted from the Obama administration’s new proposal, which defines religious groups eligible for the exemption in much more capacious terms that include all the groups Dionne and others have in mind. (It seems likely that this group was the proposal’s main intended audience.)
Finally there are those who take a position that is something like the mirror image of the feminist position: they want the state to acknowledge the legitimacy of their view on contraception—specifically that it is not like other health care, but rather, is morally problematic and perhaps unnatural. One interpretation of the Obama administration compromise is that this side got much of what it wanted. Specifically it won recognition. As David Brooks put it, the insurance company workaround “doesn't make a lot of sense logically, but it shows deference, it shows respect.” However, was it enough deference or respect? There are always some who prefer that the state not only acknowledge and respect their views but also adopt and enforce them. From this perspective, it is highly problematic that the Obama administration has decided contraception is “preventive” care in the first place. (After all, argue the Bishops, “[p]regnancy is not a disease, and fertility is not a pathological condition.”) It is even worse to require this coverage for all.
To the extent that this fight is really about the politics of recognition, we should not expect pragmatic compromises to settle the matter, nor should we expect that this fight will end when every last Catholic institutional dollar has been protected from paying for a birth control pill. Instead, even as the stakes become more picayune and hard to understand, the conflict will continue. For example, the Conference of Catholic Bishops objected within hours of Friday’s announcement, noting that, among other things, under the new compromise “[t]he employee would not have to pay any additional amount to obtain this coverage, and the coverage would be provided as a part of the employer's policy, not as a separate rider.” In other words a new battle line for the Bishops is making sure that the birth control coverage will appear more separate to patients, less intermingled with their regular coverage. This is not about spending Catholic institutional dollars on birth control. It is about the question of whether contraception is conceptually part of the regular package of health care benefits, or not—and it is about whether that question is to be decided by the government in an across-the-board way, or whether each religious group will be able to imbue some health care plans with its own view of the matter.
Some have suggested that all this adds up to a reason why we should not have employer-based health insurance in the first place. I’m sympathetic to that suggestion. But it also seems likely that this same conflict would be reproduced, in one form or another, in any possible health care system, given the deep underlying conflicts in our society over reproduction and women’s health and given the dynamics of the politics of recognition. Posted
by Joey Fishkin [link]