This is a notable departure in strategy for the White House that is likely to increase the visibility of the issue in an election year, while delaying the arrival of a solution for those women who will now be denied certain contraceptive coverage. All signs Monday pointed to the fact that Democrats would rather stage a political fight over the issue than quickly resolve it for the affected women. Both the Democratic Party and the White House Twitter accounts spend much of the day rallying people to outrage on social media over the decision. “It’s time that five men on the Supreme Court stop deciding what happens to women,” tweeted Senate Majority Leader Harry Reid.
Legal observers say it would not be difficult for the Obama Administration to resolve the situation unilaterally. The Department of Health and Human Services has already taken unilateral executive action to ensure that women employed by religious nonprofits get contraception coverage in cases where the employer declines to pay. “There was nothing in the statute that specifically allowed them to create the exemption for non-profit organizations so I don’t see why they couldn’t extend that to for-profit corporations,” said Timothy Jost, a law professor at Washington and Lee University and an expert on the Affordable Care Act’s regulations. “I don’t know why they couldn’t do it themselves.”
In fact, in a concurring opinion at the Supreme Court, Justice Anthony Kennedy recognized Obama’s unilateral powers as a rationale for allowing the for-profit companies to opt out of the contraception mandate in the Affordable Care Act. “In other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations,” Kennedy wrote. “The accommodations works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it.”