Before the Hobby Lobby decision was handed down, Sandra Fluke tweeted, “Any day now, Supreme Court decides whether corporations can deny women access to contraception.” (Hashtag omitted.)
Almost every word of this was wrong, but fortunately the Supreme Court got it right.
The Religious Freedom Restoration Act—which passed in 1993 with bipartisan support and was signed into law by Bill Clinton—doesn’t make religious convictions an absolute trump card. But it does hold, consistent with the First Amendment, that a.) Government can only override those convictions to serve a compelling public interest and b.) It must use the least coercive means possible.
There are less coercive ways to make contraception cheaper and more widely accessible than forcing people to pay for contraceptive coverage even when doing so violates their religious beliefs.
One way is to make birth control pills available to adults without a prescription.
Republicans are already starting to come around to this common sense, free-market solution. Cory Gardner, the Republican candidate for U.S. Senate in Colorado, explained in the rationale in an op-ed for the Denver Post.
“When treatments go over-the-counter,” Gardner wrote, “two things happen: they get dramatically cheaper and consumers save time and hassle by avoiding unnecessary doctors’ appointments just to get the pharmaceuticals they already know they need.”
Louisiana Gov. Bobby Jindal, a Catholic, endorsed the idea in late 2012. He argued in the Wall Street Journal that Republicans “have been stupid to let the Democrats demagogue the contraceptives issue and pretend, during debates about health-care insurance, that Republicans are somehow against birth control.”
“As an unapologetic pro-life Republican, I also believe that every adult (18 years old and over) who wants contraception should be able to purchase it,” Jindal continued. “But anyone who has a religious objection to contraception should not be forced by government health-care edicts to purchase it for others.”
What we should instead do is get government out of the way, protecting both the freedom to use safe birth control methods and religious liberty at the same time.
Women will benefit because it will make oral contraception more affordable without requiring them to get a permission slip from their employer or their doctor. The American College of Obstetricians and Gynecologists is in favor.
“Fewer unneeded doctors’ appointments mean fewer missed workdays and child-care expenses, more productivity and more time with family,” wrote Gardner. Instead women can head to one of America’s 50,000 pharmacies at their own convenience without an appointment.
“Anyone — a local teenager, a traveling businessman, a married mother of four, an illegal immigrant, even a student at a Jesuit university — can walk into my neighborhood CVS any time, day or night, and, for less than $30, buy a 36-count ‘value pack’ of Trojan condoms,” observed Virginia Postrel.
Republicans would benefit because it would undercut a mostly bogus “war on women” narrative. Prior to the debate over the Obamacare contraceptive mandate, even strong social conservatives were seldom accused of wanting to outlaw birth control (with the exception of debates over the wording of some human life and personhood amendments).
Now even Republicans as moderate as Mitt Romney face the charge. The issue helped cost Republicans a gubernatorial election in Virginia just last year.
In truth, there is no statistically significant partisan difference in opinion about birth control. According to a Gallup poll, 87 percent of Republicans believe using birth control is morally acceptable compared to 89 percent of independents and 90 percent of Democrats.
Democrats and Republicans differ more on whether people should wear clothing made of animal fur than they do on the subject of birth control. If nearly 9 in 10 Republicans believe birth control is morally acceptable, how much smaller must be the percentage that would make it illegal?
Even Hobby Lobby, the Christian business that was the plaintiff in the Supreme Court case, was willing to pay for coverage of 16 mandated forms of contraception. They objected to only four abortifacients.
It takes an odd view of religious freedom to believe a conscientious objector can opt out of fighting in World War II but a store that sells candles can’t opt out of paying for abortion-inducing drugs.
Is it safe to make the pill available over the counter? The American Journal of Public Health declared over two decades ago, “more is known about the safety of oral contraceptives than has been known about any other drug in the history of medicine.”
There is at least some evidence the prescription requirement deters oral contraception use. And birth control pills are a more effective form of birth control than condoms. (While we’re at it, we should sever the link between employment and health insurance, allowing people to buy plans that suit their needs rather than their employers’.)
If conservatives fail to push this pro-choice—in a good way—reform, the liberal reaction to Hobby Lobby is likely to be more taxpayer subsidies.
No conflict exists between religious liberty and the personal freedom to choose birth control—except when politicians wish to create one.