Why Obama Wants the Contraception Mandate to Go to the Supreme Court

By Andrew Schwartz:

Put simply, content-based underinclusion is a term signifying that the government (at any level) has entered into the social arena and has picked winners and losers based on their content. It can be practiced through punitive legislation — imposing fines or penalties upon the individual or group — or it can be practiced through subsidiary legislation — granting awards or incentives to an individual or group. A very simplified example of the former, being applicable to the First Amendment, would be punishing or criminalizing the public display of any nudity — unless the depiction is female. Conversely, an equally simplified example of the latter would be subsidizing all displays of nudity — unless the depiction is female.

The former suppresses expression, but “under-includes” nude females[*], based on content, and therefore does not suppress all expression (though it could); the latter incentivizes expression, but, again “under-includes” nude females, based on content, and therefore does not subsidize all expression in this category[†].

But how in the world does, or can, this apply to contraception?

In order to understand the argument, we must first frame the question with imperative premises.

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