The Supreme Court's determination that Hobby Lobby and other closely held corporations can be treated as religious entities, and are thus exempt from the Affordable Care Act's contraception mandate, happened to fall on the same day that President Obama announced he'll take executive action to reduce deportations from the U.S. interior now that John Boehner has confided to him that the House won't vote on immigration reform this year.
I'm sure the timing was coincidental. But as the consequences of each development begin to play out, I think we'll find that they're much more revealing side by side than they would have been running sequentially.
The key is that Democrats are going to attempt, through legislation, to remedy the damage the Court did to the contraception mandate while simultaneously acknowledging that their attempts to legislate immigration reform have failed, and that they'll have to content themselves with whatever steps the administration can take under current law.
But at the same time, Republicans are going to try to side-step the political dangers of the contraception decision and their leading role in killing immigration reform. That would be a tricky dance under any circumstances, but particularly difficult to do all at once.
Republican leaders are pretty surefooted talking about Hobby Lobby as a religious freedom fight (although it wasn't one). But they are also rightly wary of its potential to draw the party's latent Todd Akinism out of remission.
Here's Rush Limbaugh, on Monday: "[S]omehow we've gotten to the point where women should not have to pay for their own birth control. Somebody else is gonna pay for it, no matter how much they want, no matter how often they want it, no matter for what reason, somebody else is going to pay for it. That's the root of all this. The employer should pay it, the insurance company will pay it, but in no way in 2014 America are women going to being pay for it, even though you can go to Target or Walmart and get a month's supply for nine bucks."
The risk they face is that a legislative fight over contraception—over making sure female employees of Hobby Lobby and other companies aren't burdened by the ruling—will draw the real, driving concern out from behind the religious liberty artifice. It's on this ground that "striking a blow for religious liberty" becomes "we don't want to pay for your immoral sex pills, either," and that's where Republicans lose.
The easy way out of this conundrum would be to get it off the agenda as quickly as possible—to say that Obama administration officials should issue a new regulation, placing the onus for financing the contraception on insurance companies, and move on. Obama already did this for religious nonprofits. He could do it for the religious owners of for-profit corporations, too. And in the opinion of the Court, Justice Samuel Alito all but suggested this remedy to the Department of Health and Human Services.
"HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage," he wrote. "Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available she the owners of for-profit corporations have similar religious objections."
In a political vacuum, that's what Republicans would say in response to Democratic contraception legislation. But in the real world, Republicans are claiming that they can't pass immigration reform because Obama takes too many administrative liberties and can't be trusted to implement the law as written. That's always been a disingenuous excuse, but it loses all semblance of credibility when in the next breath they argue that members of Congress don't have to stand and be counted in the case of contraception because Obama can just fix the problem on his own. Particularly given that the proposed remedy doesn't actually satisfy religious conservatives.
Not that Republicans would have any qualms about talking out of both sides of their mouths. But if they try to sidestep a contraception conflagration in this way, they'll undermine their own excuse for shelving immigration reform. And if they take the contraception fight head on, they'll stumble into the conservative sexual morality play they've tried to avoid by claiming this is actually all about the religious freedom of certain employers.