Contraception Mandate Turning into Abortion Mandate?

During a recent Supreme Court argument over the Affordable Care Act’s contraceptives mandate, Justice Anthony Kennedy cut to the heart of the government’s argument. “Under your view,” he told Solicitor General Donald Verrilli, “a for-profit corporation could be forced to pay for abortions.” After some verbal fumbling, Verrilli conceded: “you’re right.” But, he quickly added, there is nothing to fear because there “is no law like that on the books.”

Not yet.

Earlier this year, Washington State tried to be the first. HB 2148, Washington’s Reproductive Parity Act, would require any health plan that covers maternity care to cover elective, surgical abortions also. The bill is supported by a majority of the Washington legislature and the governor. It is stalled — for now — in the Senate Health Care Committee.

The reach of this abortion mandate would be extensive, because current federal laws require almost all insurance plans to cover maternity services. Washington State stands ready to require almost every business in the state to cover elective abortions.

Although HB 2148 cites an existing conscience clause in Washington law, it is immediately followed by another clause that seems to nullify it. How the two can be reconciled is unclear.

What is clear is that the federal government believes no for-profit corporation has an enforceable – or even cognizable – conscience objection to such a law. In his argument, Solicitor General Verrilli made it clear, repeatedly, that the government believes for-profit corporations do not have constitutional or statutory rights to protection of their religious exercise. The government seems to believe the same regarding religious nonprofit corporations. While grudgingly recognizing that churches are entitled to an “exemption” from the contraceptives mandate, HHS granted religious nonprofit corporations an “accommodation” instead.

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