The XX Factor

Obama’s Contraception Mandate: Still Punking the GOP

Barack Obama is surely not regretting the contraception mandate in his second term.

Photo by Jewel Samad/AFP/Getty Images

It’s always strange when a piece you wrote two years ago suddenly surges to the day’s “most read” list, but that’s exactly what is happening with a post I wrote in February 2012 titled “Obama Punks the GOP on Contraception.” The piece was about how the Obama administration allowed the right-wing media to work itself into a frenzy over the requirement that religiously affiliated nonprofits provide health care benefits that included contraception, and how the administration then came up with a compromise allowing the institutions to fill out a form opting out, requiring insurance companies to cover the contraception directly. At the time, I argued that this was a genius political move by Obama. “He drew this out for two weeks, letting Republicans work themselves into a frenzy of anti-contraception rhetoric, all thinly disguised as concern for religious liberty, and then created a compromise that addressed their purported concerns but without actually reducing women’s access to contraception, which is what this has always been about.” 

Conservatives, I added, “can either drop this and slink away knowing they’ve been punked, or they can double down. But in order to do so, they’ll have to be more blatantly anti-contraception, a politically toxic move in a country where 99% of women have used contraception.” Two years later, it’s clear they chose “doubling down.”

It’s hard to say why this old post is being shared widely now. I’d like to think it’s because I concisely explained the opt-out procedure, and readers want a reminder of how this whole contraception mandate debate went down. But clearly some are reading this as if I had just written it when it is actually old. And some conservatives are gloat-reading it, mistakenly thinking that the Burwell v. Hobby Lobby decision is bringing an end to the contraception mandate and that Obama is the big loser here.

Have a good laugh, guys, but it’s a stretch to think the Obama administration has egg on its face. The requirement that health insurance plans cover contraception without a copay is still in place, and most employers are actually complying without much of a fuss because most of them are smart enough to prefer the cost savings you get from covering contraception to worrying about what their employees are up to in their private time at home. While the Department of Health and Human Services still hasn’t addressed how corporations will be able to access their new right to opt out, it still remains possible, even likely, that the administration will simply do what it did for nonprofits back when I wrote that post: require insurance companies to cover female employees directly so that contraception access is not dependent on your boss’s whims. Democrats are already drafting a bill that would provide a similar accommodation.

It is true that anti-choice forces have come up with a clever bit of legal posturing by claiming that filling out the opt-out paperwork itself directly amounts to a “permission slip” for contraception. As Dahlia Lithwick argued last week, even though it’s openly laughable to claim that merely filling out a form allowing your employee to get contraception coverage elsewhere violates your religious liberty, it’s entirely possible that the court might sign off on this argument. 

Right now, the worst possible scenario is that the court allows a few businesses and nonprofits to strip women of all contraception benefits with the paperwork three-card monte, while most women will continue to enjoy the average saving of $269 a year. The cost to achieve this meager victory is immeasurably high for the Republicans, however. Obama won the 2012 election in no small part because the growing anti-contraception rhetoric made it clear that the anti-choice movement was not about fetal life so much as hostility to sex, and to women. When conservative pundits snarl about how women need to simply quit having sex, or that unwanted pregnancy is a “consequence” women should suffer for sex, or that women who use birth control are “hoes” and “floozies,” or that women who want their insurance to cover their medication are “shrieking,” it just reinforces the Democratic claims that the conservative movement is straight up out to get women. I argued in February 2012 that Obama punked conservatives by baiting them into spewing shockingly misogynist rhetoric, but I had no idea that, two years later, they’d still be taking the bait.