The Editorial Board

USA Today

If the Obama administration had thought long and hard about the meaning of religious freedom, one of the nation’s most fundamental rights, it would not have ended up in the Supreme Court on Wednesday doing battle over free birth control with Little Sisters of the Poor and other religious non-profits.

But while writing rules for Obamacare in 2012, the administration decided to compel religiously affiliated groups to assist in offering health care plans that violate a central tenet of their faiths.

From a purely health care standpoint, Obamacare’s mandate that all employers provide birth control coverage without co-pays makes sense. As the prestigious Institute of Medicine found, this is an important part of preventive care for women.

Wisely, the administration exempted churches and other houses of worship from the start. Unwisely, it failed to exempt religiously affiliated colleges, charities and other groups, including the Little Sisters of the Poor, a group of nuns who provide care to the elderly poor, and Priests for Life, who galvanize clergy against abortion.

The administration's position was constitutionally suspect and politically foolish. Even its later “accommodation” — under which non-profits may opt out of directly providing coverage — triggered a deluge of lawsuits by 92 religious non-profits across the country. On Wednesday, seven of those lawsuits, bundled together, were argued at the Supreme Court in one of the most widely watched religious freedom battles in years.

Don’t harm women’s health: Opposing view

The dispute centers on the accommodation, which is less of a fix than a fiction: Although religious groups do not have to supply birth control coverage themselves, they must give the government what amounts to permission to get their insurers to provide it instead. The outcome is identical. As several groups argued to the Supreme Court, it requires them “to do the very thing that they find religiously objectionable” — assist in providing contraceptive coverage.

On Wednesday, conservative justices voiced sympathy for the argument that the accommodation amounted to overriding religious objections and "hijacking" the groups' health plans, as Chief Justice John Roberts put it. Liberal justices seemed unimpressed with the groups' objections. Some burdens, Justice Stephen Breyer said, are the price of “being a member of society.”

The court — now minus Justice Antonin Scalia, who died last month — seems headed for a 4-4 split.

In 2014, in another case challenging the contraceptive mandate and with Scalia on board, the Supreme Court ruled 5-4 that family-owned businesses cannot be forced to provide insurance coverage for birth control methods that violate their owners' religious beliefs. For them, the court identified a possible accommodation identical to the one at issue in this case, but added that it would not necessarily work for others. To imagine that non-profits whose very existence is tied to religion do not deserve more deference than for-profit businesses is quite a stretch.

True, some non-profits have found the accommodation acceptable, which is fine. Others clearly do not, and as the Supreme Court majority wrote in the Hobby Lobby case, it is not up to the courts to determine that certain “religious beliefs are mistaken or insubstantial.”

As long as health insurance is provided primarily by employers, these sorts of clashes will occur.

Even so, none of this had to happen. The government certainly could have found a more productive, less divisive way to provide free birth control, perhaps offering inexpensive coverage outside the workplace for employees of these religious groups, while exempting the non-profits as it has done for churches.

Federal law has several broader religious exemptions the government might have used. When the administration was formulating its policy in 2011, the Rev. John Jenkins, president of Notre Dame and an Obama supporter, urged the administration to adopt an expansive exemption already in the tax code for employers who share “religious bonds and convictions with a church.” Simple and effective.

Had the administration listened, it would have avoided years of legal battles. It might have used the time and energy to find creative ways to offer free birth control to religious groups' employees. And one of the nation’s most sacred rights — religious freedom — would have been granted the respect it deserves.

USA TODAY's editorial opinions are decided by its Editorial Board, separate from the news staff. Most editorials are coupled with an opposing view — a unique USA TODAY feature.

To read more editorials, go to the Opinion front page or sign up for the daily Opinion e-mail newsletter.