I Am Altering the Contraception Deal

I am altering the contraception deal. Pray I don't alter it any further.

RECAP: The words “Obama” and “birth” have been in the headlines again, but this time it has nothing to do with that silly certificate. If you missed all the action, a couple weeks ago Kathleen Sebelius, head of Health and Human Services under the Obama administration, announced that employers who provide insurance to their employees would be required to include birth control in those plans, at “no extra cost” (in quotes because the cost always gets spread out somewhere). This contraception mandate included an exemption for religious organizations like churches, but not religious organizations with non-religious services – like Catholic hospitals.¬†Well, that really ticked off the Catholic Church, which officially denounces birth control even though evidence suggests that most of their members use it anyway. Conservatives got riled up about Obama’s attack on religious freedoms, and even some Democrats started defecting. Then yesterday Obama announced that they were tweaking the mandate to honor religious freedoms by way of a technicality where the religious organization doesn’t have to provide the service to its employees but the insurance provider has to contact the employees directly to offer it – at “no extra cost.” Or something like that.

It’s been rather dismaying for me to read the comments in the news articles about this, as most people just attack the Catholic Church and/or general conservatives for being hypocritical or hating women or being against birth control. But those attacks completely miss the broader points, which some conservatives have been dutifully trying to explain. Ross Douthat wrote about the false liberal assumption that government is the only thing we “choose to do together” and how this mandate is an example of government trying to crowd out voluntary community efforts: “It is Catholics hospitals today; it will be someone else tomorrow.” Douthat also gave a smack-down to Kevin Drum’s assertion that it’s OK because it’s “a matter of conscience only for a tiny number of men in the formal hierarchy of the Catholic church.” John Cochrane says “Insurance is a bad idea for small, regular and predictable expenses.” Sonic Charmer says BYOFS: “Buy Your Own Freaking Stuff.” Tim Carney has been leading the charge on Twitter: “Hey, I’ve got my own compromise: We don’t prohibit you from buying contraception, and you don’t prohibit us from NOT buying it!”

But there’s another point that bothers me the most. When people defend Obama’s decision by complaining about Catholics or conservatives, they are implicitly accepting that it’s not even an issue that Obama has the authority to make that decision. Jonah Golbderg succinctly captured my frustration when he tweeted yesterday, “So it sounds like Obama’s ‘accommodation’ is like Darth Vader’s alteration of his deal with Lando.” Unfortunately, comparing the President to totalitarian dictators has been an overused tactic by both the right and the left, but on this particular topic I think it’s quite relevant. So Obama just decided that employers had to provide birth control? And then after some outcry Obama just decided to tweak the deal? Are we really OK with a President that has the power to decide things like this? Why is no one asking THAT question?

Look, I know the President’s administration has to have power to decide things; that’s kind of the point of our divided branches of government. But in recent years I think it’s likely that either Congress has been giving the executive branch too much power or it’s been asserting too much power on its own, or both. One of the obvious symptoms of this has to do with how many things a new President can completely reverse. Remember the headlines about Bush being bad about scientists and the environment and then Obama switching things back? It’s one thing for Congress to say the executive branch has the authority to mandate something like fuel standards (which I disagree with in principle but I understand the case for it). It’s quite another for Congress to essentially give the executive branch almost unlimited authority to create its own mandates.

If Obama can just make rules like this, what if a Republican president just turns off the mandate? And then the next Democratic President reverses it again? Yes, I know Congress can repeal things too, but a reversed decision of over 500 people from all over the country, many of whom may be the same people that made the original decision, is way different than one man or woman repealing the work of a different man or woman. This is the kind of monarch-like behavior that our system of government is supposed to prevent, and as I mentioned in yesterday’s post about the new wave of waivers, it’s a threat to our system of government.¬†Everyone seems caught up in the issue of what kind of contraception mandate Obama should decide to give to employers and insurance providers. But the real issue is whether or not Obama should have the authority to decide it at all.