Resolv­ing con­flicts is a core func­tion of gov­ern­ment.  Incit­ing them is a core com­pe­ten­cy of our polit­i­cal class.

The habit of inflam­ing pas­sions for polit­i­cal pur­pos­es was on dis­play again this week in the US Sen­ate. Wednes­day’s show vote osten­si­bly con­cerned the right of women to receive “free” birth con­trol from their employ­ers.  But the leg­is­la­tion, as its authors sure­ly knew, would not become law.  If it did, it would result, not in employ­ers buy­ing more con­tra­cep­tives for their employ­ees, but in more work­ers los­ing employ­ment-based health insurance.

At issue was a bill to over­turn last month’s Supreme Court rul­ing in Bur­well v. Hob­by Lob­by.  The case con­cerned a gov­ern­ment edict that applies only to employ­ers that choose to pro­vide health cov­er­age to their work­ers.  Such cov­er­age must include every method of birth con­trol with­out cost-shar­ing.  The major­i­ty of the Court deter­mined that close­ly held cor­po­ra­tions need not cov­er those few con­tra­cep­tives (4 of the 20 FDA-approved prod­ucts) to which they object on reli­gious grounds. Their rea­son­ing rest­ed on the Reli­gious Free­dom Restora­tion Act, which pro­vides that gov­ern­ment “may sub­stan­tial­ly bur­den a person’s exer­cise of reli­gion” only if it employs “the least restric­tive means” of fur­ther­ing its “com­pelling interest.”

The Sen­ate bill to over­turn this deci­sion (S. 2578)  failed on a pro­ce­dur­al vote last Wednes­day.  The mea­sure com­mands employ­ers to pay for every “item or ser­vice … required under any pro­vi­sion of Fed­er­al law or the reg­u­la­tions pro­mul­gat­ed there­un­der” (sec­tion 4(a)).  It doesn’t tri­fle with ques­tions about whether the gov­ern­ment has a com­pelling inter­est or even a ratio­nal basis for its dic­tates.  Instead it con­fers on the fed­er­al bureau­cra­cy ple­nary pow­er to tell employ­ers and insur­ers what they may and may not cov­er.  Under its terms a future Admin­is­tra­tion could arguably ban cov­er­age of con­tra­cep­tives if it were so inclined.

The mea­sure explic­it­ly dis­miss­es the pro­tec­tions of moral con­science con­tained in the Reli­gious Free­dom Restora­tion Act as irrel­e­vant (sec­tion 4(b)).  There is, the Sen­ate bill declares, no con­straint on the gov­ern­men­t’s pow­er – you are to do what it tells you to do notwith­stand­ing your moral and reli­gious convictions.

The bil­l’s stark for­mu­la­tion betrays its polit­i­cal pur­pose.  Its spon­sors weren’t mak­ing a seri­ous effort to change the law.  They were try­ing to con­vince those women who tend to vote for Democ­rats that Repub­li­cans want to take their birth con­trol away.  Democ­rats fear that many of these women won’t vote in Novem­ber and are seek­ing to pro­vide some moti­va­tion, how­ev­er flim­sy, for them to do so.  There’s a war on women, the bill’s pro­po­nents say.  Whose side are you on?

There is, of course, no war on women and no effort to cur­tail access to con­tra­cep­tives.  Birth con­trol is abun­dant­ly avail­able.  And the require­ment that insur­ers and employ­ers cov­er all 20 FDA-approved drugs and devices remains intact, despite the nar­row excep­tion that the Court carved out for a very small uni­verse of companies.

Noth­ing in the Hob­by Lob­by rul­ing dimin­ish­es the ele­vat­ed sta­tus that Oba­macare extends to con­tra­cep­tion.  Cov­er­age of con­tra­cep­tion remains more expan­sive than for oth­er pre­ven­tive ser­vices for women’s health like uter­ine can­cer screen­ings, cov­er­age of which Oba­macare has great­ly cur­tailed.  It is also more expan­sive than for drugs that are used to treat can­cer (includ­ing uter­ine and breast can­cer) and depres­sion (includ­ing post-partem depres­sion). The cov­er­age require­ments under Oba­macare for med­i­cines to treat these and oth­er life-threat­en­ing con­di­tions are much less exten­sive than the man­dates that apply in the Medicare pre­scrip­tion drug program.

Enact­ment of the Sen­ate bill would like­ly have reduced the num­ber of peo­ple who get health insur­ance through the work­place.  The bil­l’s broad man­date applies to every firm that “estab­lish­es or main­tains a group health plan for its employ­ees.”  It does not apply to cor­po­ra­tions that refuse to do so.  This year, in defi­ance of the law [sec­tion 1513], the Admin­is­tra­tion has cho­sen not to impose a penal­ty on cor­po­ra­tions that don’t insure their work­ers.  There is spec­u­la­tion that the IRS may not levy penal­ties next year either.  But even if it does, the penal­ty for not cov­er­ing cer­tain forms of con­tra­cep­tion is 18 times larg­er ($36,500 per work­er per year) than the penal­ty for not pro­vid­ing any health cov­er­age at all ($2,000 per work­er per year).  If Con­gress were to over­turn the Hob­by Lob­by deci­sion, the only prac­ti­cal option left for an employ­er who con­sci­en­tious­ly objects to cer­tain forms of birth con­trol would be to drop its group health plan entirely.

Why force that choice?  If the over­rid­ing pol­i­cy goal is to pro­vide insured women of child­bear­ing age with con­tra­cep­tion that is free at the phar­ma­cy counter, then why pick a fight with employ­ers who object to cer­tain forms of birth con­trol?  Why not make some oth­er arrange­ment that would allow employ­ees of such com­pa­nies to get their “free” con­tra­cep­tives with­out requir­ing their employ­er to pay for drugs and devices they find objec­tion­able on reli­gious grounds?

This is a solv­able prob­lem.  But solv­ing it would elim­i­nate a use­ful polit­i­cal con­tro­ver­sy. This sort of syn­thet­ic con­tro­ver­sy has become a sta­ple of both polit­i­cal par­ties.  It is far eas­i­er to incite than unite, to con­jure and per­pet­u­ate crises than to resolve them.  The rewards of stir­ring ani­mos­i­ty are imme­di­ate and mea­sur­able, the dam­age less obvi­ous if more lasting.

But what if the Pres­i­dent were to approach this issue dif­fer­ent­ly?  What if he sought a solu­tion that both pro­vid­ed “free” con­tra­cep­tives and accom­mo­dat­ed the deeply held reli­gious beliefs of a small group of employers?

That approach to lead­er­ship, so rare in both par­ties, might make pol­i­tics less caus­tic and more productive.

Which, per­haps, explains why it won’t happen.