The recent discussion of the Department of Health and Human Services’ contraceptive rules has left me worrying that even fairly well educated people are no longer up to the job of carrying on a reasoned debate.
Last year, Secretary Kathleen Sebelius announced that the department, pursuant to the Affordable Care Act, would require almost all employers to include contraceptive and other services in their health-insurance policies — no matter what religious or other objections the employer might have. Dozens of lawsuits ensued, seeking exemption on the grounds of religious liberty.
On Feb. 1, the department proposed some grudging amendments to the rules. Introducing the amendments with a pose of evenhandedness, Sebelius observed, “There are issues to balance in this area. There were issues of religious freedom on two sides of the ledger.”
Washington Post columnist E.J. Dionne described the two sides as “the freedom of the religious institutions and the freedom of their employees who might not share their objections to contraception.” Marcia Greenberger, co-president of the National Women’s Law Center, insisted the amendments went far enough: “The health needs, the religious and conscience beliefs of women deserve to be respected and protected.”
But the claim to get contraceptives is not a matter of religious right.
This is so for two reasons. The most obvious is that constitutional rights are rights against the government, not private parties. The First Amendment says “Congress shall make no law . . . prohibiting the free exercise [of religion.]” It doesn’t bind private employers.
The other is that not everyone who disputes a religious claim is herself making one. Suppose Hindu University declines to serve beef in its cafeteria because the Rig Veda frowns on killing cows. It would be bizarre to say that an employee who wants a hamburger has a religious right to one.
But contraceptives are different from hamburgers, you might say. The Supreme Court held in Griswold v. Connecticut (1965) that there is a constitutional right to contraceptives. It might not be a religious right, the argument runs, but it has equal constitutional weight in any balance we might strike.
That’s simply not true. The right to reproductive freedom, like religious freedom, is a right against the government, not private employers. The Fourteenth Amendment says “No State shall . . . deprive any person of . . . liberty.”
And even if the right extended to private employers, it would not cover this problem. Griswold proclaimed a right to prescribe or use contraceptives; it didn’t order the government, or anyone else, to provide them.
On the contrary, the high court has held, “It simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”
A third claim you often hear is that contraceptive coverage is a matter of contractual right. Perhaps the constitution doesn’t require it, the argument goes, but health insurance is a benefit that people work for, and reproductive care is part of any rational health-insurance policy.
When we call something a contractual right, we mean that the parties have agreed on it. But many employers, like The Catholic University of America (and for that matter, Hobby Lobby), wouldn’t make an agreement to cover contraception, sterilization, or early-term abortion because those practices violate the employer’s religious principles. There is no real contract.
Of course, if the market works (as this argument presupposes), then these employers will have to make it up to their employees in some other way if they want to remain competitive. They might, for example, have to increase the wages they pay by the value of the procedures they exclude from their insurance plans.
When you get down to it, the real basis for the “right” we are arguing about is the legal requirement, newly imposed by HHS, that employers must now pay for prescription contraceptive services, sterilizations, and early-term abortifacients. It’s no defense of that requirement to say that women have a right to the services the rule requires. The right came into being with the rule. This is an argument that holds itself up by its own bootstraps.
John Garvey, president of The Catholic University of America and former dean of Boston College Law School, is the author of “Modern Constitutional Theory,” “Religion and the Constitution,” and “What Are Freedoms For?”