Controlling Birth Control, Controlling Liberty

Andrew Sullivan —  Feb 8 2012 @ 8:38pm


by Zack Beauchamp

2012's great birth control debate is far from over. The Catholic Church is threatening all-out war against the Obama Administration until it caves on the decision to require contraceptives without co-pays. One popular framing of the debate is religious liberty versus women's health, but that's not quite right. The Administration's requirement isn't a threat to liberty, religious or otherwise. It's a sally in an ongoing debate about the character of liberal rights – and one on the right side, to boot.

We usually think of religious liberty as an individual believer's right to worship and practice freely. That's of course not at issue here – the feds aren't marching into Catholic bedrooms and making everyone take Plan B on Sunday morning or requiring Catholic hospital administrators to pass out free birth control in the lobby. The regulations instead require they indirectly subsidize birth control use, which several faiths believe means being forced to participate in evil. But opponents worry about a much broader problem than religious freedom. Check this from Ross Douthat last week:

Critics of the administration’s policy are framing this as a religious liberty issue, and rightly so. But what’s at stake here is bigger even than religious freedom. The Obama White House’s decision is a threat to any kind of voluntary community that doesn’t share the moral sensibilities of whichever party controls the health care bureaucracy.

Ross is arguing that government regulations "crowd out" private associations that perform valuable societal functions. Forcing members of those associations to adhere to legal rules they find repugnant puts them in a devil's choice: do something they believe fundamentally wrong or, more likely, get out of providing public services entirely. Government thus guts the ability of private, voluntary organizations to do good. See David Brooks and Kirsten Powers for similar arguments.

But here's the problem: these "voluntary communities" aren't the Rotary Club – they're employers that wield a significant amount of financial clout. The market, though we refer to it as the "private sector," is in a certain sense very public: we all have to participate in it. Because in capitalist economies no one has much of a choice about getting a job, all but the most extreme libertarians accept that the government has to set some standards about how employers treat the employed. Allowing "conscience" exemptions whenever an employer doesn't feel morally clean when complying with regulations in principle neuters all regulation. The argument for allowing Catholic hospitals a pass on covering birth control has to rest or fall on the specifics of the case rather than a general commitment to protecting "voluntary communities."

This is where the case against the Administration's ruling is at its weakest. Birth control is for 98% of women the principal means of protecting a right central to their own liberty – the right to choose when to create a family. Chances are most women employed by Catholic universities and hospitals are part of the 98%. For these women, not having access to birth control renders a crucially important right meaningless.

Full insurance coverage is a critical part of the picture. Birth control is an expensive product – $81 a month is considered a steal with no contribution from your insurance, but that number still prices out many women. Even insurance plans that have copays can be prohibitively pricey. Cheaper alternatives like condoms have significant failure rates. Insurance, overwhelmingly provided by employers in the American system, that covers birth control with no copays is a woman's best bet.

The Administration's critics are saying that, in the currently existing health care system, protecting that right would create a grave threat  to equally important rights of free association. Seems like a classic rights conflict. However, churches and institutions that serve only co-religionists are exempt from the requirement. The only institutions covered by the birth control mandate have chosen to participate in the broader market, a zone of private life governed by political rules. It's incumbent on critics to explain why this particular rule is a dangerous expansion of state power over market actors as compared to, say, forcing a Randian executive to follow minimum wage laws. If they can't, then it seems like the coverage requirement protects women's rights without appreciably increasing the state's threat to private associations. Critics would have to fall back on the pure religious liberty argument, which is itself problematic.

Finally, there's the claim that the coverage mandate will cause valuable charities, hospitals, and universities to shut down rather than violate their consciences. The evidence from 28 states that have this requirement suggests otherwise, though it's not conclusive. Until there's real reason to believe otherwise, we should keep the focus squarely  on the threat to a woman's right to plan their lives as they choose. Private financial coercion, contra Douthat, can be every bit as subversive of individual rights as legislation. I'm glad the Administration understands that. 

(Photo by flickr user Gnarls Monkey.)