After Todd Akin uttered the fateful words that destroyed his Senate campaign in August of last year, everyone in the GOP wanted a tug at the rope as they tied him to the train tracks. Almost every major figure in the party condemned him. Many asked him to step aside and allow someone else to run as the GOP's Missouri candidate.
The Republican half of the "legitimate rape" pile-on was a desperate, but ultimately failed attempt to portray Akin's comments about rape as an unfortunate case of bad-appleism. Much better to attack him for suggesting that some rapes might actually be righteous (which he didn't do) than for clumsily expressing what many Republicans genuinely (and wrongly) believe: that some rapes are less morally reprehensible than others, and that when a man perpetrates a so-called "forcible" rape, it won't result in a pregnancy.
That belief system didn't disappear just because Republicans blackballed Akin. And the fact that religious Republicans learned from Akin's experience that they're better off keeping their mouths shut about a whole host of issues doesn't mean that the GOP's latent Akinism won't flare up again.
In fact, it inevitably will. And the Supreme Court's coming consideration of the Affordable Care Act's contraception requirement almost guarantees that some prominent conservative will break out with a case of the Akins before the 2014 election.
While obviously distinct from the issue of whether conservatives think abortion should be legal in cases of rape, the ACA's requirement that health insurance, including employer sponsored insurance, cover contraception has already demonstrated its power to unmask the right's unpopular beliefs about birth control pills and female sexuality in general.
Just over a year and a half ago, conservatives believed they could put Democrats on the defensive by framing their opposition to the contraception coverage guarantee as a morally neutral stand for the religious liberties of employers. But when the Obama administration extended ministerial protections to a wider range of religious organizations, conservatives revealed their true objection: they, like Rush Limbaugh, view many women who use birth control as "sluts" and do not want to subsidize their "slut medicine."
(If that sounds ungenerous, take a moment to reacquaint yourself with the things Limbaugh said about then-Georgetown University law school student Sandra Fluke.)
Limbaugh personally and the right collectively paid a price for those comments. But the political and financial consequences didn't extinguish the ideology behind them. Next year the Supreme Court will decide whether the mandate violates the religious rights not of religious institutions or their affiliates, but of employers who happen to be religious. Conservatives are again framing the debate around anything other than what's really at its heart: whether equalizing access to contraception is a worthy objective; what criteria should society use to determine what counts as preventive care, and whether it should be publicly financed.
Instead it's about religious liberty. It's about a corrupt Democratic payoff to pharmaceutical companies.
But when you interrogate these objections, you end up back at the same old morality play.
Start with the premise that all employers, including conservative Christian employers, aren't "providing" health care coverage. They're compensating workers in a form that's highly tax preferred for both them and their employees. Their employees want the coverage, and they'd rather give them the coverage than give them taxable cash compensation. By insisting on the right to exclude contraceptive coverage from the menu of options provided to workers, conservatives are tip toeing up to the line of allowing employers to dictate how workers are and are not allowed to spend their pay.
The Affordable Care Act goes all the way in the other direction by including contraceptive coverage on a menu of services private insurance must provide. One way to look at what the Affordable Care Act does is to say it gives most employers few options other than to provide insurance that covers birth control pills (and other preventive care), even if the proprietors are morally opposed to oral contraception. That's true. And it's appropriate in my view. But I think a better way to look at it is to say the Affordable Care Act imposes a variety of further conditions on that big tax break. If employers want to keep it, they need to accept that the plans they offer will cover contraception. If they don't, they can stop offering health benefits.
The right wants religious employers to both be allowed to conform worker benefits to their personal dogmas (in this case, opposition to contraception) and also to keep the subsidy. But you can only insist on both if your main goal is to limit access to immoral sex pills, rather than to protect the religious liberty of the proprietor.
Obviously it's no small practical thing for a business like Hobby Lobby to up and drop employee health benefits. It would put the company at a big competitive disadvantage in the labor market (though the ACA mitigates that) and the company would eventually owe sizable penalties to the government for failing to provide coverage (thanks again to the ACA).
But you can't wish away this option, particularly if the moral principle is truly cardinal. There are millions of people in the country adhering to myriad religious dictates, many of which run at cross purposes with the law, and they don't get special treatment simply because special treatment would be better for business.
It's fine for conservatives to think that the ACA's preventive care requirements are broadly improper or to argue that oral contraception specifically shouldn't be considered preventive care for regulatory purposes. It would be fine, too, if Republicans introduced legislation to strip the contraception mandate from the ACA specifically, or if they proposed an alternative, means-tested system** that equalized access to contraception without forcing the owners of Hobby Lobby to subsidize Paris Hilton's birth control pills. (**trolling)
But doing any of those things would invite all of the Akins out of the woodwork.
So instead conservatives are arguing that business owners should be allowed to mold tax preferred health benefits for wokrers around their religious precepts, and call it an expression of religious freedom. Because who doesn't like religious freedom?
This probably wouldn't lead to a huge rash of workers suddenly denied access to birth control, or other services. But we don't really know. If the Supreme Court strikes the contraception mandate, the consequences would be unpredictable, and potentially vast. On the relatively narrow issue of health care it would effectively codify the idea that the federal government can't predictably regulate business owners who are being subsidized to provide coverage in the first place. But beyond that, it would create an incentive for business owners to attempt end runs around all manner of other generally applicable laws.
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