December 3 2013
Let's Talk about Rights, Baby
The Supreme Court’s decision to hear cases challenging Obamacare’s birth control mandate has pretty much guaranteed that the “War on Women” will continue to be a part of American political rhetoric throughout 2014. Obamacare advocates are trying to paint this as an issue of women’s rights. Our “right to birth control” is infringed when our employers don’t pay for it, they claim.
But women shouldn’t be used to justify this mandate and its assault on liberty. The premise of this mandate is belittling to women, and the result is a misguided and unconstitutional policy. Clearly, this boils down to a debate about rights.
Our “first freedom,” at least according to the order listed in the Bill of Rights, is religious freedom. American history turns on this: The New World attracted persecuted religious minorities away from European countries.
Even non-religious people can appreciate this integral part of the First Amendment. Beyond strictly “religious” beliefs, Americans appreciate the right to live by one’s own values, which may differ from the majority of the public or the ruling party.
Nowhere in the Bill of Rights is there a “right to birth control.” That’s because birth control, as a consumer good developed in the early 1960s, is not a “right.” It’s relatively affordable and available with a prescription. Programs and non-profit groups already exist to help impoverished women access birth control.
Most women were clever enough to figure out how to get our hands on the stuff even before its first-dollar coverage was included in our new healthcare “rights.”
The confusion here stems from a bigger debate between positive and negative (or natural) rights. A natural right comes from God, or nature. These include the right to life, liberty, and the pursuit of happiness. Positive rights go further, like the right to an education, a job, health care, birth control or maybe even an abortion.
The question is this: Who provides these positive rights? If it’s the government, this will surely mean forcibly taking from someone else, even if just by taxation.
In the case of the Health and Human Services mandate, the government has included all-FDA approved contraceptives in a list of federally required “essential health benefits.” Employers (of 50 or more workers) have to provide insurance coverage that meets these requirements – or else face hefty penalties.
Now more than 84 lawsuits are challenging the rule, according to the Becket Fund. Some plaintiffs are non-profit schools and hospitals. Others are for-profit companies such as Hobby Lobby Stores and Conestoga Wood, who will head to the Supreme Court.
The issue before the Court is this: Individuals have rights, sure, but what if those individuals happen to be employers? Do they lose their religious freedom when they enter the “public sphere?” While the legal jargon may be complex, the simple answer to this question is – or ought to be – no.
An employer’s refusal to pay for insurance coverage for certain drugs and procedures does not infringe on employees’ rights. It simply means that each employee will have to obtain the desired drugs and treatments without forcing the employer to pay for it.
On top of the constitutional issues, there are other reasons to oppose the HHS mandate. It simply doesn’t make economic sense to pay all together for routine health costs when we could pay separately. In this case, third-party payers remove the downward pressure on costs that comes with price transparency and competition. Drug companies will be the real winners if this mandate stands.
American women are free to use birth control if they choose. Employers are free to offer insurance coverage for contraception as well. But this isn’t about birth control or women’s health. Ultimately,this is about rights. No one should be forced to choose between the laws of government and the laws of his or her God, and women shouldn’t be used as pawns in this debate.