The Real Issue

The U. S. Supreme Court’s decision in the Burwell, et al v. Hobby Lobby Stores, Inc., et al  (link here) has generated more than the usual amount of wailing and gnashing of teeth, especially on the left. That case, however, did not decide an underlying issue at the heart of neo-progressivism as it exists in today’s political sphere. That issue is the nature of fundamental rights and the extent to which they will be respected.

The issue before the Court in Hobby Lobby was whether requirements to provide certain contraceptives imposed by the Department of Health and Human Services on employer required medical care plans, violated the free-exercise clause of the First Amendment.

The morality of the use of any birth control, certain types of pregnancy prevention devices and pharmaceuticals, or abortion, is certainly informed by one’s religious belief, and is, in my view, personal to the individual and should be free of government interference. Of course, the free exercise of religion and one’s religious and moral standards should also be free from government interference, with some obvious exceptions such as forced genital mutilation, using poisonous snakes in services when children are present, and other activities that are injurious to other than competent participants in the ritual.

Thus the conundrum. The right generally supports the decision as upholding the rights of religious believers not to participate in providing certain types of contraception, those that prevent a fertilized human ovum to proceed through to birth. The left generally opposes the decision as one that allows those believers to impose their view of personal morality on others, namely their employees.

The issue is a result of the 2010 Affordable Care Act aka Obamacare’s mandate that qualifying employers, generally those with 50 or more employees, must provide free of cost-sharing contraceptive medical pharmaceuticals and ancillary services of the type certain employers object to on religious grounds. The Court ruled – and this an oversimplification of the ruling – that such a mandate violates the free exercise clause of the Constitution in this case.

The left has characterized this decision as a denial of the rights of women to make decisions concerning their reproductive health. The counter-argument, putting aside the nuances of the Court’s analysis, is that it does nothing of the kind. Women are free to make the choice and obtain those contraceptive services; the employer just does not have to pay for them. The left rejoins by contending that refusing to pay is tantamount to denial because such pharmaceuticals and ancillary services are expensive and unaffordable by many women who are gainfully employed or are dependents of such employees.

That rejoinder is ridiculous. A cursory price search in the Dallas, Texas area reveals that the most commonly used regular oral contraceptive costs $9.00 per month ($0.32 per day) at Wal-Mart Pharmacies. That monthly cost is about that of three lattés at Starbucks; less than three gallons of regular gasoline; or three dozen eggs. The Plan B (or morning after pill) is $47.00 over-the-counter, less than half of a typical monthly smart phone plan (and one does not have to sign a two or three year contract). A rape victim would probably not be charged full price, if any at all.

What is distressing is that we have so acclimated to third parties paying for our medical services, that the very idea of someone refusing to pay for certain good and services because they object on moral grounds is tantamount to denying access. No one appears to investigate the cost of procuring those services by oneself. In some instances, they are surprisingly inexpensive, or can be bargained for (the insurance companies do it).

The Hobby Lobby case, and others already decided, in the pipeline, and yet to come, are a result of legislative and administrative mischief that has decided that the legislatures may declare certain so-called positive rights, in other words, require government to provide or force certain private persons to provide certain goods and services to others.

Our conception of fundamental rights is that there are certain unalienable rights that human beings inherently have. The United States Constitution, both in its original body and amendments, enumerates many of those rights, but does not foreclose the existence of others. It does not grant rights, but actually restrains government from doing something unpleasant to one if they choose to exercise certain rights regarded as fundamental. Government is not constitutionally required to provide private goods or services.

There are other nations that have constitutions that provide for positive rights including education, food, housing, health care, employment, among others, that their governments are legally required to provide. One of the most notable for its comprehensiveness was that of the old Soviet Union. That government never provided anywhere near what its constitution mandated, and collapsed of its own weight.

The problem with those states is that when the government is mandated to provide scarce resources to its populace, those resources, being finite, must be rationed in some way. That results in equality in the form of equal misery, and quells the incentive to innovate and produce (except for those who are willing to risk participating the inevitable black markets). Ultimately, there comes a time when the government runs out of other people’s money, and cannot beg, borrow, or steal any more.

The extent to which our government will provide, or mandate the provision of, certain resources is an issue the Supreme Court probably will never definitively answer. It really is a political question. What seems clear is that, as I heard the late Senator (and Lyndon Johnson’s Vice-president) Hubert Humphrey once say, the more a government can do for you depends on more of what it can do to you. If the neo-progressives have their way, the government will be able to do a lot more for us (whether we want it or not), and consequently, unpleasantly to us. The fundamental rights the Constitution was designed to protect inevitably will be threatened.

For an interesting exposition of these issues, I recommend reading a column by Megan McArdle who writes for Bloomberg View. This column also appeared on today’s Dallas Morning News op-ed page.

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