Is contraception a right?
Much of today's political discourse skirts the question whether this or that activity or status or good or service is a "right."
The Declaration of Independence has a partial list of self-evidently "inalienable" rights that drafters, including one slave owner, agreed were bestowed on all men by their Creator. Life, liberty, and the pursuit of happiness. In the Bill of Rights, the vague Pursuit of Happiness became Property (5th Amendment). Modern discussion of "rights" have warped the concept to the point that it is near meaningless to speak of "rights."
Housing and healthcare are widely regarded (now) as rights. Compare these with the type that are included in the Bill of Rights, and some real differences emerge.
Housing and healthcare are goods and services. I can enjoy them only if someone pays for them. If they are a right, they must be supplied to me. But who pays for them? The builder or doctor, or a current or future taxpayer, must be compelled to provide them. So their rights to liberty or property are undone by my right to housing or healthcare. New rights aren't bestowed by the Creator, they are supplied by government force.
Because they come through government force, new rights are not "inalienable." They are very alienable. Just ask the employees of church hospitals and soup kitchens. If they had a right to contraception, some political pressure was all it took to wipe the right away. So new rights come and go with each political breeze.
With one interesting exception old rights are "negative" in the sense that they are couched as things the government should not interfere with. My (old) rights may bump up against your (old) rights, in which case government (usually via the courts) plays referee. But old rights almost always are: "Government, don't ____" Fill in the blank with "muzzle me" or "censor my book" or "confiscate my gun" or "tell me what to worship."
The only exception I can think of is the right to defend yourself from criminal prosecution. This includes the right to a speedy jury trial, to cross-examine witnesses, and to have an attorney help you. These are resources the government must allow you to have in order to take on the government.
New rights are not like old rights. New rights aren't about restricting the government from interfering in your life. New rights are about empowering the government to run your life by fostering dependency on government-supplied goods and services.
Once you say healthcare is a right, then contraception drugs and services must be free, and the refusal of government to force someone (everyone? the wealthy?) to pay for it is tantamount to a ban. Government must also pay for abortion. I really don't understand how the Catholic Church or anyone else can be surprised by any of this.
The Constitution is not so much about the "what" as about the "who." Once government gets to determine people's rights without reference to the Constitution, there is no telling what "rights" will be inflicted on us.
Leave it to an attorney to write a post that gives me no wiggle room to argue.
ReplyDeleteSorry. Come on, surely there is something to say. Do you think that by not paying for her contraceptives the Catholic Church denied Sandra Fluke a right to have free contraceptives? Most people are focusing on the religious freedom problem of forcing the Catholic Church to pay for something contrary to the faith. but I think the problem is bigger than that. No one should be forced to pay for Sandra Fluke's contraception. If she wants contraception, she can pay for it herself or forego sex. At one level deeper maybe this is about forcing people to pay for Sandra Fluke having safe sex ($3,000 worth in three years - or maybe she expects to take longer to graduate).
DeleteMy first comment was a compliment by the way.
ReplyDeleteI do not believe the Catholic church must provide Sandra Fluke with contraception.
I believe Sandra Fluke has a constitutional right to contraception but not free contraception.
There is a very simple answer to this problem. We have this wonderful free market economy that has been the source of the greatest prosperity in the history of the world. It works, and it works very well. I don't believe health insurance is a good way to pay for health care but it's what we got so let's work with what we got.
All employers should stop covering their employees with health insurance and rather give them the money they were shelling out for health insurance premiums. Let that individual then go search out and find the right plan that fits them. I'm sure you could find a plan that offered free contraception (then you don't have to pay for a baby). The free market is the answer, but not the one we're likely to see. I don't think Catholics should be in the health insurance business, but of they want to, women shouldn't complain about their benefits if they choose that as their insurer. The problem now is they are forced to have that coverage if they work for that institution. Employers don't pay for your car insurance, why should they pay for your health insurance.
Constitutional right to contraception? Where is that found? Ah yes, it is derived from the right to marital privacy, which isn't derived from the text of the document, but from its infamous "emanations" and "penumbras" according to Griswold v. Connecticut.
DeleteAs Chris says, "Once government [the courts, in this case] gets to determine people's rights without reference to the Constitution, there is no telling what 'rights' will be inflicted on us."
I'm guessing that by saying Fluke has a 'constitutional right' to contraception, you mean that the Government cannot constitutionally prohibit her from using contraceptives, correct? But you're right, it is a far jump from saying the government can't prohibit you from using a good which can be purchased on the open market to saying that the government must provide you with free contraception. This distinction is at the heart of this post.
Getting employers out of the health insurance business was McCain's big initiative for healthcare reform in 2008. The employer-health insurance connection is a persistent distortion of the free market created by a tax law from the late 40s. (Employers get to deduct health insurance premiums paid for the employees, a benefit not taxed to the employees.)
DeleteYou know I'm glad you brought up Griswold because it's been at the back of my mind this entire time ever since Stephanopoulous asked Romney that ridiculous question, because Griswold solved that very issue decades ago! So even if someone like Santorum tried putting a ban on contraception, it wouldn't take because the court has already decided that it's unconstitutional.
DeleteIt seriously makes me wish I were in Romney's shoes to answer that question: "no, George, I actually CAN'T ban contraception because the Supreme Court won't let me! Thus this is an irrelevant issue."
I don't know, it seems like a hard answer like that would have made it a lot harder for the media to try and portray this silly narrative of Republicans waging a "war on women" when contraception is in fact a SETTLED ISSUE.
I'm not saying that I necessarily agree with Griswold, because as an originalist I really can't agree with the legal reasoning behind it, but like it or not that's the precedent. Stephanopoulous might just as well have asked whether Romney would be in favor of banning free speech, or making Mormonism the official religion of the United States, or try and quarter soldiers in our homes, or banning jury trials, etc. Why even ask such a question when you know that any such unconstitutional law--aside from the severe political blowback--is just going to be struck down by the Supreme Court anyway?! It's just purely irrelevant ridiculousness, in my view...
Thank you for the compliment, by the way.
DeleteI categorize this under the right to life, liberty, and the pursuit of happiness. Mostly under liberty. No government, even state government, should be able to take away someone's ability to use contraception. But they do not have the responsibility of providing it for free either. Drive to planned parenthood and buy it for $13, then you don't have to spend $1,000 a year.
ReplyDeleteI think we're all in agreement. Ironically, the price of contraceptives at the pharmacy nearest Georgetown Law School is $9 a month. Same with Wal-Mart. Rush Limbaugh really screwed this whole thing up. He turned an uber-liberal activist into a national celebrity overnight.
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