In a rational world, women in the U.S. would be able to buy birth control over the counter — something that is perfectly safe to do, and that women in other countries do as a matter of routine.
But because American women cannot, the country is now embroiled in an unnecessary debate — one that, exacerbated by tendentious red-team/blue-team cheerleading, has produced an almost poisonous level of mendacity. If the prevaricators prevail, they will roll back the country's progress toward broader individual freedom of conscience.
The debate concerns Obamacare's contraception mandate. That bureaucratic (not legislative) edict now exempts certain religious institutions thanks to a compromise earlier this year. But that leaves some businesses, such as current litigants Hobby Lobby and Conestoga Wood, on the hook despite their own faith-based objections. The Supreme Court recently agreed to resolve the disagreement among lower courts about whether the mandate violates religious liberty.
An unfortunate prior ruling by Justice Antonin Scalia makes the constitutional argument harder to sustain. In Employment Division v. Smith, Scalia wrote that individuals enjoy no religious exemption from neutral laws of general applicability. So opponents of the mandate may hang their hat on the Religious Freedom Restoration Act, or RFRA.
Supporters of the mandate say corporations shouldn't have religious rights, period. Some go so far as to say corporations should enjoy no rights at all — a proposition that would allow the CIA to forbid publication of embarrassing news stories and let the police seize computers belonging to Planned Parenthood at will. But as law professor Eugene Volokh points out, "Corporate rights are often useful legal fictions precisely because they help protect actual humans."
Honest proponents of the mandate admit they think a woman's access to free contraception should trump freedom of conscience. Others contend religious liberty is not at issue, and those persons of faith who think otherwise are mistaken. This is a new version of the old false-consciousness concept Marxists used to trot out, back when there were Marxists.
Some of the mandate's supporters go even further than that, by insisting religious liberty is indeed at stake — and the ones putting it at risk are the mandate's opponents. That is the view of The New York Times, which says "the real assault on religious freedom here" is "the assertion by private businesses and their owners of an unprecedented right to impose the owners' religious views on workers who do not share them." It is the view of CNN's Sally Kohn, who says right-wingers and Hobby Lobby are "trying to contort government to impose the religious views of some onto many."
It's the view of the ACLU, which claims "RFRA cannot be used to force one's religious practices upon others." (The ACLU, once a stout friend of religious liberty, should remember to which circle of Hell Dante consigned those who committed acts of treachery and betrayal.) And it's the view of Erin Matson, of the pro-choice RH Reality Check, who tweeted last week: "If you are depriving others of their liberty, you are not exercising personal religious liberty."
Eh? By that logic, a Quaker who declines to buy you an assault rifle is not exercising his religious liberty; he is violating your rights under the Second Amendment. This is nonsense on stilts. There is only one mandate, it flows in only one direction, and it affects only one party: the employer. It is positively Orwellian to suggest that asking to be left alone — to not be forced to do something — is the same as imposing your values on others by force.
And force is precisely what is at issue. If Hobby Lobby prevails, then Hobby Lobby employees will be able to buy contraception, or not, depending on their own preferences, just as they can now. But if Hobby Lobby loses, then Hobby Lobby, its owners, and employers like them will not be able to choose. They will be forced to violate their religious beliefs.
What's more, if Hobby Lobby prevails then its employees will be situated precisely like the employees of every company with 50 or fewer workers. Under Obamacare, those companies do not have to provide any insurance at all, let alone contraception coverage. Advocates of the mandate are thus arguing that those companies have every right not to offer contraception coverage, for any reason or no reason at all — but if Hobby Lobby asks for the same treatment, then it is somehow forcing its values on others. Absurd.
This whole fight would go away in a heartbeat if the U.S. allowed over-the-counter sales of birth control. Doing so would make obtaining contraception vastly easier, without conscripting the unwilling. It would thereby increase individual liberty for all and let everyone follow the dictates of his or her own conscience. Now that would be truly pro-choice.
This column originally appeared in the Richmond-Times Dispatch.