Now that the Supreme Court has ruled that “closely held corporations” with religious objections can refuse to abide by the Affordable Care Act’s contraception coverage mandate, Democrats are trying to work out a way to ensure that employees retain access to that coverage. The consensus seems to be that the path of least resistance on this issue is for the administration to unilaterally extend out to those companies the accommodation it created for religiously affiliated nonprofits – employees would still have access to contraception coverage, but it would be paid for by an outside administrator or the government. The court actually floated this as a viable course of action in the majority opinion.
The White House, however, is not entertaining that option. At least not yet. While the administration has signaled openness to addressing the issue through executive action, the White House is advocating a legislative fix.
“What we’re talking about doing is pressing Congress to actually take the step that’s required to address this problem,” White House press secretary Josh Earnest said yesterday, “to make sure that the women who work for these companies have access to the preventative coverage that they deserve.” When Earnest said “pressing Congress,” he meant “forcing Republicans to vote against contraceptive coverage.”
Whether it actually comes to this remains to be seen. You can accuse the White House of engaging in a bit of cynical posturing, given that it’s all but certain that the Republican House would kill any Obamacare-related legislation. But conservatives are well aware of the political risks of a vote on legislation dealing with contraception, and are arguing for Republicans to get out ahead of the White House.
The Washington Examiner’s Philip Klein writes this morning that Republicans should vote to make oral contraceptives over-the-counter to head off the coming “War on Women” attacks. “In the wake of the Hobby Lobby ruling,” Klein writes, “[Democrats] now have an opening to respond with legislation to expand contraception access. If Republicans oppose the Democrats' legislative solutions, the GOP will be attacked as being anti-women.” Ben Domenech at the Federalist also argues in favor of OTC birth control, calling the objections to such a policy “unconvincing paternalism.”
Of course, this strategy carries the same risks, as there are certainly members of the Republican caucus who hold some “unconvincingly paternalistic” views on women’s reproductive health and lack the sense to keep their mouths shut. Also, making oral contraceptives OTC is, at best, a partial solution to the problems of access and cost that the Affordable Care Act looks to fix. However you look at it, Republicans are once again staring down a political dilemma on contraception.
If the White House and the Democrats do end up pushing a legislative fix, the GOP will be impelled to vote against it, thus reviving the “War on Women” theme that’s been used to great effect against them in the past. But they also can’t accuse the White House of playing political games by pushing for legislation instead of taking unilateral action. They’ve been complaining for years that the White House is taking too much unilateral action on Obamacare and immigration and any number of policy areas. “That would be a tricky dance under any circumstances,” Brian Beutler writes at the New Republic, “but particularly difficult to do all at once.”
That’s why conservatives are so eager for the GOP to find an end-run around the whole contraception issue. They know the politics of it are horrible for the Republicans and they know the Republicans are very good at shooting themselves in the foot on women’s health.