Does Reproductive Freedom Imply a Right to Free Birth Control?

Yesterday the Senate narrowly rejected a bill that would have exempted employers and insurers from medical coverage mandates to which they object on moral or religious grounds. Opponents portrayed the bill, which was provoked by the Obama administration's requirement that health plans cover contraception and sterilization, as an assault on reproductive freedom. "The Senate will not allow women's health care choices to be taken away from them," said Sen. Patty Murray (D-Wash.). "The Obama administration," declared Secretary of Health and Human Services Kathleen Sibelius, "believes that decisions about medical care should be made by a woman and her doctor, not a woman and her boss." Sen. Barbara A. Mikulski (D-Md.) saw the bill as part of "a systematic war against women." 

It's a mystery how revising a mandate that has not yet gone into effect takes any kind of choice away from anyone. And Kathleen Sibelius' dismay that employers are involved in these decisions at all is pretty rich, since the Obama administration had a chance to sever the market-distorting, price-inflating tie between employers and health insurance, which is perpetuated by the federal government's tax policies. Instead Obama's health care reforms made this artificial connection mandatory and prescribed exactly what employers have to cover, which is what triggered this whole controversy.

Supporters of Obama's birth control rule conflate liberty with subsidies, insisting that you are not really free to do something (in this case, use contraceptives) unless it's free. According to this logic, observant Jews do not have religious freedom unless the government pays for their kosher food, bloggers do not have freedom of speech unless taxpayers buy them computers, and Americans in general do not have a right to keep and bear arms if they have to pay for guns with their own money. By contrast, the religious institutions that object to the contraceptive mandate are not asking for subsidies; they are resisting them. They object to a regulation that forces them to pay for products and services they consider immoral. They want the freedom to offer their employees health plans that do not cover contraception and sterilization. (For more on this distinction, see Sheldon Richman's essay on negative vs. positive rights.)

Last week Sandra Fluke, a Georgetown University law student, told House Democrats why she supports the contraceptive mandate:

I attend a Jesuit law school that does not provide contraception coverage in its student health plan. Just as we students have faced financial, emotional, and medical burdens as a result, employees at religiously affiliated hospitals and universities across the country have suffered similar burdens. We are all grateful for the new regulation that will meet the critical health care needs of so many women….

Without insurance coverage, contraception can cost a woman over $3,000 during law school. For a lot of students who, like me, are on public interest scholarships, that's practically an entire summer's salary. Forty percent of female students at Georgetown Law report struggling financially as a result of this policy. One told us of how embarrassed and powerless she felt when she was standing at the pharmacy counter, learning for the first time that contraception wasn't covered, and had to walk away because she couldn't afford it. Women like her have no choice but to go without contraception. Just last week, a married female student told me she had to stop using contraception because she couldn't afford it any longer. Women employed in low wage jobs without contraceptive coverage face the same choice.

Fluke's testimony prompted a sexist tirade from Rush Limbaugh that was not only gratuitously offensive but failed to zero in on the glaring weaknesses in her case for the mandate. Her argument boils down to this: Here is something we want but cannot afford; therefore someone else should be forced to pay for it. We've already discussed the fallacy behind the second part of that argument. What about the first part?

Fluke says birth control "can cost a woman over $3,000 during law school," which translates into $1,000 a year, or about $83 a month. Even that estimate is suspiciously high. Here is a website that offers a month's worth of birth control pills for less than $20. According to Planned Parenthood, birth control pills "cost about $15–$50 each month." (Condoms and diaphragms are even cheaper.) Even if you include the cost of a doctor's visit to get a prescription, Fluke's figure is inflated. Are Georgetown Law students really struggling to pay $1 for a condom or buy a diaphragm with an amortized cost (including spermicidal jelly) of $2 or $3 a month? If so, abstinence is always an option.

In short, Fluke chose to attend a Jesuit school and now objects because she has to pay out of pocket for birth control, a trivial expense compared to the cost of tuition, books, food, rent, transportation or even the copayments for other medical services. How can this inconvenience possibly justify compelling someone else to pay for her contraceptives, especially when they have religious objections to doing so?