The Obama administration initially got it wrong on its controversial contraception rule and likely violated federal law, religious-policy experts at the Brookings
Institution said on Thursday.
Bill Galston, a former Clinton administration official, and Melissa Rogers, the director of Wake Forest University Divinity School's Center for Religion and Public Affairs, attempted to inject some balance into a debate that has exploded over the past month in their report examining conscience issues in health care.
But they also said the White House’s initial position on the birth-control rule – which exempted religious groups only when they primarily serve people of their own faith, among other requirements – was not a fair position. It violated the 1993 Religious Freedom Restoration Act, Rogers said, because it was not the “least restrictive” way for the federal government to impose on religious practice.
After weeks of vehement opposition from some religious leaders, particularly Catholic bishops, the Obama administration last week offered an “accommodation” to the contraception rule, saying religious organizations’ money would not be used to pay for birth control. Insurers must pay instead. That change was a step in the right direction, Rogers said.
“The process was flawed … and the president was not maximally served” initially, Galston said. “The right voices were never together in the right room.”
Rogers said the new guidance introduced by the Obama administration last week could be broadened during the rule-making process. And as for the court cases challenging the contraception rule, Rogers said the best place to write good policy on conscience issues was the legislature, not the courts.
“Courts can’t fashion this very well,” Rogers said.
Of course, as the highly polarized 112th Congress heads into the presidential election, there is little chance of thoughtful legislation on this topic. On Capitol Hill, the debate has devolved into a political point-scoring opportunity; Democrats paint the controversy as an attack on women’s health, while Republicans frame it as an attack on religious freedom.
It doesn’t have to be so black and white, especially on issues of religious conscience that have “bedeviled” legal scholars for decades, Galston said.
“We need to dignify the interests of both sides,” Rogers said at a briefing. “It doesn’t have to be winner-take-all.”