Antonin Scalia

More Contraception, Less Conscription

In a rational world, women in the U.S. would be able to buy birth control over the counter.

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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.

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  1. 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 yet, almost no one bothers to make this point, any more than many will bother to ask why birth control is any of govt’s business in the first place. Tossing out religion is like chum in the waters; it’s guaranteed to stir something up while ignoring the underlying question.

    1. Asking to be left alone involves forcing those who would force you to do things to stop forcing you to do things, which is a use of force. Thus libertarianism is tyranny.

      /Tony

      1. I’ve heard pretty much that argument on economic liberty.

      2. You have to forgive Tony. He has to live in constant fear that libertarians(who are a tiny fringe extremist group) are going to take over the government and cut off him mommies welfah, thereby depriving him of his free basement sanctuary.

        1. It’s sad that he isn’t here to treat us with his utterly fallacious arguments. We have been reduced to sarcastically making bad arguments with his name attached, just to fill the void.

    2. Yup – see PB’s comment below… it’s all the fault of the So-Cons. Such a claim immediately brings religion into the problem as a scapegoat – and, more importantly, a cover for the fact that team blue are seemingly against making birth control available OTC, too. No, the real problem is that most So-Cons and team blue members are statists, which is why the underlying question is avoided.

    3. This^^^^wareagle

  2. “tendentious red team/blue team cheerleading”

    A plague on both their houses-both the supporters of the HHS mandate *and* the opponents!

    Next: the tendentiousness of the rapist *and* his victim!

  3. So we’re supposed to be able to just buy and put into our own bodies, whatever the fuck we want, without the divine blessing of our gracious and benevolent leaders? Anarchy! Chaos! Plagues of locusts and fiery apocalypse!

    1. And Somalia!

      1. Kill all the women!

  4. We really are insane as a society. The one type of drug you can make a valid argument for controlling are antibiotics. If I overuse them, I hard other people by contributing to resistance. But we make virtually no effort to control those. Farmers pump them in cattle by the gallon and anyone with a credit card can buy them online from overseas pharmacies without a proscription. Instead, our government spends all its efforts ensuring that no one buys anything that might make them happy and that Planned Parenthood and the various GYNs get their payoff in the form of useless exams of any woman who wants a birth control pill.

    1. payoff in the form of useless exams of any woman who wants a birth control pill

      Where’s the equality? I think condoms should require a prescription. No man should have to assume any risk until a proper hand job exam has been performed.

      1. I bet if you gave handjobs as “exams” needed for buying condoms a lot more men would use them.

        1. My plan would also narrow the gender pay gap.

        2. A lot more men would get the exam. Not so sure they’d run out and buy or use more condoms, though.

        3. Depends on who was offering handjobs I’d posit.

    2. You can buy antibiotics over the counter in some South American countries. Which I sort of appreciate when I have a sore throat that I know is a bacterial infection and I don’t want to give a doctor $100 to tell me what I already know and then scribble on a piece of paper so I can get what I already know that I need.

      1. I see that side too. My wife had a raging ear infection last summer. I looked in her ear and could tell that was it. I went online and it told me exactly the drug and the dose needed to treat such a thing. She went to the doctor and sure enough got exactly the proscription I predicted online.

        The thing about the internet is that there is a lot more on it besides WebMD. You can find the scientific papers and the actual treatment protocols doctors follow. Most of the time, it is not that hard to figure out what is wrong and what the treatment should be.

        We still should stop farmers from giving cows antibiotics. And I would trust making them over the counter if you could figure out a way to get people to understand the difference between a virus and a bacteria. Good luck with that though as people buy antibiotics every time they have a cold.

        1. And I would trust making them over the counter if you could figure out a way to get people to understand the difference between a virus and a bacteria. Good luck with that though as people buy antibiotics every time they have a cold.

          Slippery slope…

          1. This is a tough one because the overuse of anti-biotics does legitimately affect all of us when the time comes that we need to use them to fight off an infection. Instinctively I would say they should be OTC, but I do have concerns regarding overuse leading to superbugs that we can’t fight off.

    3. Actually I used to buy birth control pills online from overseas pharmacies without a prescription. But otherwise I agree with your statement.

  5. SoCons don’t want people fucking without Gawd’s wrath and consequences even here on Earth.

    The Pill spoils that Calvinist view of things.

    1. CHRISTFAGS!!111!!BUSHPIGS!!11!!!!

    2. That is why Democrats don’t support this either. Democrats don’t want people fucking unless Planned Parenthood and the AMA are getting their protection money.

      Die in fire Retard.

      1. I take it that it’s really been hitting the rubbing alcohol hard lately?

        1. It is just tough times. CHRISTFAG!! is really the only move he has left.

          1. I’ve got to give him some kudos for using the phrase “Calvinist view of things” in an attempt to use important sounding words.

            Of course, there’s little logic to his post. It’s purely an emotional rant.

            1. Of course it is like most things he writes, completely retarded. It is the Catholics who object to birth control, not the Protestants or even the evangelicals. The Evangelicals object to the state giving birth control to kids. But Evangelicals don’t object to birth control. But PB is retarded and makes up for it by being uninformed and angry.

          2. “It is just tough times. CHRISTFAG!! is really the only move he has left.” As a Devout Scienfoology-Fag, I must say, this REALLY REALLY hurts my baby feelings to the quick, they ALL worry about the Christ-Fags, and NO ONE stoops so low as to give us SCIENFOOLOGY-Fags OUR fair share of abuse! I just dunno WHUT TF I am gonna do anymoars, guess I am gonna hafta go off and sulk? PLEASE give me MY fair share of abuse!!! Tell me that “I don’t love Jesus, my feet smell, I eat the Smart Pills from underneath the rabbit cages”, SOMETHIN’ like that? I miss my old high school shop teacher? From BEFORE the days when the GAWD-danged LAWYERS prevented us from having shop classes in the 1st place?. PWEASE abuse me??!!? I deserve it, honest I do?

    3. Really? SoCons run the FDA. Then why is every other medication controlled by the FDA? SoCons believe GAWD wants you to have hypertension and stroke out?

      1. The PM links had a story about a 6 year old boy who was suspended and now has sexual harassment on his record because he kissed a consenting girl’s HAND.

        In the comments of the linked story, people were arguing over whether conservatives or liberals were to blame…

        1. I fear for the time when my kids’ generation is runnign the show.

          As the nasty stuff that happened 30 years after WW-I show, kids who are raised in a sociopathic environment where kindness and humanity is punished are capable of horrific atrocities.

          There is nothing wrong with a hug and a kiss. It’s very human. This imposed autism will twist and warp the psyche in very dangerous ways.

        2. In the comments of the linked story, people were arguing over whether conservatives or liberals were to blame…

          the correct answer would be yes, amirite?

          1. I think the correct answer is that idiots are to blame.

            1. Distinction without a difference.

    4. Well then why don’t you go find some socons to discuss it with?, fucktard.

    5. Unless you can somehow connect taking The Pill with duty and hard work. If it’s fun Calvinists are verrrry suspicious.

    6. You can’t really be this stupid, can you…never mind.

  6. back when there were Marxists

    Someone hasn’t been on an Ivy league campus for a while, comrade.

  7. But because American women cannot, the country is now embroiled in an unnecessary debate

    The solution to messes caused by government intervention is always more government intervention.

    It’s the view of the ACLU, which claims “RFRA cannot be used to force one’s religious practices upon others.”

    Giving less is taking! Taking less is giving!

    “If you are depriving others of their liberty, you are not exercising personal religious liberty.”

    But I just bought a bottle of mirror polish. Okay, fine, I’ll go to the store and buy more.

  8. The FDA is secretly run by a cabal of SoCons. Everybody knows that.

  9. There is another solution to this problem. Just tell the ACLU and everyone on the left that the companies that make birth control pills invest heavily in Israel. Once they realize that, the ACLU and the rest of the left will come to look at denying birth control coverage as a moral duty.

    1. Did you know that birth-control pills provide large profit margins for Big Pharma? Corporations! Profit! Evil!

  10. I’m not sure how contraceptives being available over the counter would change anything. Condoms are available over the counter but the new ‘health care’ law requires they be covered as well, and they’re far cheaper than the pill would be in any case so availability is not the issue, even cost is not an issue here. If contraceptives were over the counter and abortion was not regulated they’d still have to be covered by the new ‘insurance’, we’d still have the same issue.

    1. Agreed. But all drugs should be over-the-counter, nonetheless, unless there’s some kind of agreement between the drug company and pharmacist that they must be prescribed by a doctor. It should never require the blessings of the state to purchase a drug.

    2. I came to the comments specifically to point this out. Conclusion doesn’t follow from the premise.

  11. So this word ‘prevaricators’ does in fact exist.

  12. Is it really safe to have hormone combinations just sold over the counter though? I’m all for getting the gov’t out the way but what I know about female contraception is it’s a very complicated set of hormones and many different dosages based on a lot of factors. Something I would think a doctor would need to consult on.

    1. Than consult a doctor. Nobody is stopping you.

    2. http://www.medscape.com/viewarticle/774965

      The OB/GYNs say yes. Funny how the second they couldn’t charge a copayment for a “free preventive care” it was safe for OTC.

    3. Vitamin D is a hormone. Don’t be fooled by the name.

      Melatonin is a hormone.

      Where are all the Vitamin D deaths and melatonin deaths?

  13. To me this isn’t even a religious freedom issue. Or at least it shouldn’t be. It should be a question of what authority does the government have to mandate a company to provide anything as part of it’s service package. When did that stop becoming the issue?

    1. When the robed-one Chief Justice Roberts said the Constitution authorizes any Congress to mandate that Americans buy any product Congress decrees, that is when.

    2. stopped being issue when anti-theists realized the religiously derived motives of businesses in question.

      they dont think these motives deserve equal protection.

      legally roberts obamacare ruling set this precedent as ‘lawful’. it doesnt make it any more or less constitutional, but its now SOP.

      1. I’m not a theist but I love you Ann N(j/k).

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