All Commentary
Friday, February 17, 2012

It’s Not about Contraception

Negative versus positive "rights"

When you bake a bad ingredient into a cake, no matter how nicely you decorate it, the cake will still be bad.

That’s the lesson to take from the controversy over Obamacare, Catholicism, and contraception. To recap, under Obamacare all employers will be required to arrange for “health insurance” for their employees. Coverage must include various disease-preventive health services and women’s contraception at no charge. No premium-sharing, no copays, no deductibles – nothing.

The Department of Health and Human Services, which has ominous rule-making power under Obamacare, exempted Catholic churches (as employers) from this rule because Catholicism teaches that contraception is sinful. However, HHS did not exempt Catholic institutions whose mission (the government says) extends beyond religion, namely, colleges, hospitals, and charities. Those institutions would have to pay (nominally at least) for their women employees’ birth-control products and services.

That seemingly arbitrary distinction set off a political firestorm intense enough to force the Obama administration back to the drawing board. Under President Obama’s so-called “accommodation,” all Catholic institutions would be exempt from paying for contraception after all, but their insurance companies would have to provide the coverage at no cost.

Top Catholic officials are still unhappy, though other prominent Catholics are satisfied. The matter isn’t settled yet. (Aside: Is there a significant difference between a Catholic institution’s being forced to pay for employees’ birth control and its being forced to arrange the match between its employees and the insurance company that will pay for it?)

In announcing his “accommodation,” Obama said that religious liberty has been squared with a “core principle”: “a law that requires free preventive care will not discriminate against women.” We need not “choose between individual liberty and basic fairness for all Americans.” Since men’s contraception is not mandated for free coverage, Obama’s remark about discrimination is puzzling.

Competing Liberty Interests?

Washington Post column E. J. Dionne, a Catholic and an enthusiast for Obamacare, put it this way: “There were legitimate liberty interests on both sides of this debate.” He is satisfied that both “liberty interests” have been served.

What exactly are the two liberty interests? One is clear: an institution wishes not to be compelled to facilitate what it regards as morally abhorrent. (The validity of that moral judgment is irrelevant.) But what’s the other one? One infers from the discussion that it’s women’s liberty to use contraception. (A third liberty interest – an insurer’s right not to be forced to give away services — is strangely overlooked.)

How exactly was the liberty to use contraception jeopardized by the Catholic exemption? In no way would a woman’s freedom in this respect be infringed simply because her employer was free to choose not to pay for her contraceptive products and services. (See last week’s TGIF on why volitional acts such as contraception and other preventive measures are neither free nor insurable.)

Yet advocates of Obamacare insist on conflating these issues. They repeatedly portray opposition to forced financing of contraception as opposition to contraception itself. (Alas, some conservatives have encouraged this conflation.) Must the difference really be spelled out?

This sort of argument is nothing new, of course. In The Law (1850), Frederic Bastiat noted that advocates of government-run schools accused those who opposed them of being against education itself.

Prohibitive Expense

When pressed, proponents of “free” employer-provided contraception claim (as though this were responsive) that many women can’t afford birth control and that insurance companies would save money by giving it away. (Why haven’t the insurers thought of that?)

Taking these in reverse order, the second argument begs the question. Insurance companies allegedly would save money because they wouldn’t have to pay for medical services associated with having children. That assumes that if the insurer were not providing  free contraception, women would have to do without. But that is precisely what is in dispute. Why assume that?

As for the claim about the allegedly prohibitive expense, one may properly ask how that could justify forcing others to pay. It’s amusing to watch advocates of free contraception cite as evidence for their position polls showing that women overwhelmingly support no-cost contraception. Since when have people not wanted free stuff? Women have managed to obtain birth control up until now (we’re repeatedly told that nearly all women, including Catholics, have used it), and low-income women can resort to Planned Parenthood if necessary, which already gets taxpayer money (which is not to say it should).

When a “Right” Is Not a Right

What we have in this debate is a clash not between two liberty interests, but rather between two rights-claims – one negative (genuine), the other positive (counterfeit). All that is required for the exercise of a negative right (to self-ownership and, redundantly, liberty and one’s legitimately acquired belongings) is other people’s noninterference. (“When we say that one has the right to do certain things we mean this and only this, that it would be immoral for another, alone or in combination, to stop him from doing this by the use of physical force or the threat thereof,” writes James A. Sadowsky, S.J.) But the fulfillment of positive rights requires that other people act affirmatively even if they don’t want to — say, by providing products or paying the bills. If one person’s freedom depends on the infringement of someone else’s freedom, the first claim is illegitimate. To hold otherwise is to reject the principle of equality.

Women have the right to contraception (and any other product) in the sense that they have a right to spend their money on it or to try to persuade someone else to do so. There can be no right to force (or have the government force) others to pay. (Aside #2: It’s curious to see feminists asking the male-dominated State for “free” birth control.)

This controversy is not about contraception. It’s about freedom versus compulsion.

As long as that bad ingredient – the principle that government may coerce people to buy things for others – is baked into the cake, it will be rotten no matter how it’s nicely decorated.

  • Sheldon Richman is the former editor of The Freeman and a contributor to The Concise Encyclopedia of Economics. He is the author of Separating School and State: How to Liberate America's Families and thousands of articles.