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, buttheir 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?


Get Reason's print or digital edition before it’s posted online

  • Progressive Puritans: From e-cigs to sex classifieds, the once transgressive left wants to criminalize fun.
  • Port Authoritarians: Chris Christie’s Bridgegate scandal
  • The Menace of Secret Government: Obama’s proposed intelligence reforms don’t safeguard civil liberties