California's 'Reproductive Health Non-Discrimination' Bill Is an Affront to Liberty

Employees and employers alike should be insulted by the measure.

The California State Senate and Assembly this month overwhelmingly voted to pass a bill prohibiting employers from discriminating against women who opt to terminate a pregnancy or use contraception. But you don't have to agree with me that abortion is an act of violence to recognize that this measure is a blow to libertarian principles.

The "reproductive health non-discrimination" bill, like the St. Louis, Missouri, ordinance and a law enacted in 2014 in Washington, D.C., are clear violations of both economic and religious liberty. Employers should be free to make hiring and firing decisions in accordance with their interests and convictions, and the state should have to meet a high bar before it can force them into business relationships they do not wish to enter or maintain.

There may be extreme cases where government action is justified. The intuition behind widespread public support for the Civil Right Act of 1964, for example, is that the sheer scale and severity of racial persecution at the time warranted emergency action. As Cathy Young wrote here at Reason in 2010, "Most likely, over the long haul, overt discrimination against blacks in the private sector would have become socially unacceptable and mostly extinct. But could American society have afforded to wait? To answer 'yes' is to underestimate the urgency of the issue, the evil of Jim Crow."

Sadly, sometime in the last five decades, the idea that freedom should be the norm, and constraints on freedom a departure from it when necessary, became inverted. Today, we too often begin by assuming that everyone will be coerced into complying with the majority's conception of good behavior, and then we make individuals plead for special exemptions one by one—setting the bar high for people to be able to live as they like instead of setting it high for government to be empowered to restrict them.

The California bill does this expressly: It includes an exception so narrow that it only applies to an employee who "conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith." Falling outside that protection would be virtually anyone who works in any capacity for any faith-based charity. Yet it's not at all hard to imagine—if one isn't obstinately disinclined to do so—why a Catholic school, say, might want to limit its staff positions to people committed to modeling the faith to students in particular ways.

As for the extreme situation warranting this flexing of legislative muscle? Point me to evidence that California is facing down a scourge of business owners demanding female job applicants submit to having their reproductive choices monitored by their bosses and, by all means, then we can talk.

Golden State lawmakers have gone one infuriating step further than even all this, however. They didn't just decide that protections against discrimination will be the default while foricing those who really want to opt out to jump through extra hoops. They actually wrote into the bill that "any contract or agreement, express or implied, made by an employee to waive the benefits of this section is null and void."

So the measure doesn't just violate the rights of employers. It's also a slap in the face to workers themselves—the very people it purports to be looking out for. The legislation denies women the agency to enter into voluntary contractual arrangements, telling them, in essence, that for their own good they have to be stopped from deciding for themselves what terms under which to labor. Say what you like about businesses that don't want to hire people who use birth control (to the extent such businesses exist). As libertarians, there's no countenancing such presumption on the part of the state as denies the validity of consensual private compacts between adults.

It's true the California bill shields employees from discrimination on the basis of any reproductive health decision, an umbrella category that covers not just using contraception and getting an abortion but also becoming pregnant at an inconvenient time for your company. But don't think that's a strong defense. Pregnancy status has long been a protected class in this country, for better or worse. The third guarantee against discrimination is already on the books, in other words, and the first two do not belong anywhere near them.