“We Need Policy Made By Judges, Not Unaccountable Public Officials”

In defense of the Hobby Lobby ruling, syndicated columnist William F. George combines two bad tastes that taste worse together:

The Affordable Care Act, as supplemented by regulations, requires for-profit employers to provide health-care coverage that includes all 20 Food and Drug Administration-approved birth control methods.

These include four that prevent a fertilized egg from being implanted in the uterus. Some persons consider this tantamount to abortion and oppose these abortifacients for religious reasons. Why did Congress, having enacted RFRA, write this clearly [sic] incompatible birth control mandate? Congress didn’t.

In the ACA, Congress simply required health plans to provide “preventive care” for women. An executive branch agency decided this meant the full menu of 20 technologies. So, during oral argument in March, Justice Anthony M. Kennedy asked: “What kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?”

The answer is: The constitutional structure we have is the kind progressives prefer, wherein more and more decisions are made by unelected and unaccountable executive-branch “experts” exercising vast discretion. In this instance, the experts were, to say no more, willing to provoke a predictable controversy that would be convenient for the Democratic Party’s “war on women” trope. Today, this war consists of subsidizing only 16 of 20 birth control methods. The court has held that some “closely held” businesses — often family-owned and adhering to religious practices — have a right under RFRA to wage this war.

Let’s first look at the idea that there’s something illegitimate about the contraceptive requirement because it was announced through an executive branch regulation. This is, needless to say, absurd. There are cases in which executive agencies issue regulations whose connection to authorizing legislation is tenuous. This not one of them. Congress authorized the Department of Health to develop a list of what insurance has to cover for the purposes of “preventative care,” and…this is exactly what it did. (Note that Will doesn’t actually try to argue that contraceptives aren’t preventative care; he’s not even willing to explicitly endorse the scientifically erroneous assertion that some forms of birth control are “abortifacients.”) Congress has good reason to delegate, since medical knowledge is not static, and what is necessary to provide adequate preventative care coverage will change over time, and the discretion given to officials in this case was hardly “vast.” To argue that the contraceptive mandate wasn’t really authorized by Congress because it was implemented through a regulation issued under the specific authorization of Congress is silly.

Will’s justification for this war on the basic modern regulatory state is also amusing. It’s unclear how the executive branch officials who issued the regulations are “unaccountable.” They are directly accountable to the public official with the best claim to a national electoral constituency, and are also indirectly accountable to Congress, which was always welcome to exclude contraceptives from “preventive care” should majorities be persuaded by the views Will pretends to take seriously. Certainly, they rank higher on an “accountability” scale than the 5 justices who gave a strained reading of RFRA to uphold a weak religious freedom claim, so Will’s argument collapses on itself. And speaking of “vast discretion”, may I present you with Justice Alito’s balancing test with “substantial” safely written out of the statute, suitable to reach any policy outcome you desire in future cases.

Added to this nondelegation nonsense is the dominant strategy of defenders of the opinion: minimization that is not justified by the text of the opinion itself. The “16 out of 20” talking point is a non-sequtiur, because employers who want the insurance they get a tax break to provide to cover 0 out of 20 get exactly the same exemption. The bulk of Will’s defense, in other words, consists of bullshitting his readers, who he hopes won’t know that Hobby Lobby wasn’t the only litigant here and that Supreme Court opinions apply in future cases. And nor is anything about the logic of the opinion limited to contraception; who knows what exemptions the whims of future conservative judges will enable employers to claim. The fact that defenders of the Court’s judgment, up to an including Alito himself, are disingenuously trying to claim that the opinion is narrower than it is speaks for itself.