A Tin Ear on Contraception

The recent announcement by the Obama Administration that it has once again sought to accommodate the concerns of religious groups that are required to provide contraception under the Affordable Care Act is a testimony to its tin ear on matters of religious liberty. The root cause of the difficulty is that the Administration thinks that it should engage in a delicate balancing act to reconcile women’s interest in contraceptive care and religious organizations’ interest in their own autonomy. 

Unfortunately, this entire balancing act is misconceived. Religious organizations are right to voice a firm but polite objection to the new rules. No one doubts that women are entitled to acquire and use contraceptive devices. But the correct correlative duty of that right is that the religious organizations cannot interfere with a woman’s ability to acquire it from any third-party provider at her own expense. The religious organization should be under no duty to supply it to her, or to pay, directly or indirectly, for that coverage which is against their conscience. Just as the churches cannot impose their will on others, so others cannot impose their will on the churches.

The recent HHS proposal seems to recognize the force of this objection. But instead of just backing down and confessing error, the Administration attempts to finesse this situation by making it clear that the religious groups need not pay for the expense of supplying that coverage, which will ostensibly be absorbed by insurers. But what it does not explain is why health insurers cannot “impose any premium, fee or other charge” for the services that are costly to them to supply. The conceit in this case is that the extra costs will be made up in the reduced costs of childbirth (which assumes that they will materialize). And it does nothing to address the plight of religious organizations that choose to self-insure. Nor does it deal with the intense objection of ordinary businesspeople who have similar religious objections to the ACA command.

As Sarah Torre explains: 

The latest proposal fails to protect businesses such as Tyndale House, the nation’s largest Bible publisher; or Hercules Industries, a family-owned and operated HVAC company; or Hobby Lobby, an arts and crafts retailer—all of which seek to operate according to deeply held religious and moral beliefs.

These fitful efforts–and the tendency toward selective inclusion and exclusion that they represent–will continue to dog the Obama Administration’s efforts because of the flaws in its underlying philosophy of rights. The government seems to think that it can define which organizations  are entitled to associational liberties and which are not. This attitude first arose in connection with the employment discrimination laws that purported to explain to employers the grounds on which they could not turn down workers, thus initiating a regime of forced interactions between private parties. 

It would be foolish to insist that some degree of coercion is never allowed, but the proper scope for a non-discrimination rule is to counter the monopoly power of certain select firms, such as public utilities and common carriers. The firms that are covered by these new rules, however, operate in competitive environments and the workers who do not like the deal that they receive from one firm can go to other. 

It is a profoundly misguided impulse to assume that the world becomes a freer or more just place when government officials can tell people what they must do and whom they must deal with. What the Obama Administration desperately needs is a bit more modesty in what it demands of others. A strong nation can tolerate individual firms with different employment practices. It cannot tolerate an authoritarian government that insists on telling everyone on how to behave.

  1. KC Mulville
    Richard Epstein: 

    It is a profoundly misguided impulse to assume that the world becomes a freer or more just place when government officials can tell people what they must do and whom they must deal with. 

    You’d think this is so obvious that it doesn’t require saying, but instead, the government tramples over it every day.

  2. simplogic

    With due respect Mr. Epstein, this has nothing to do with having a political tin ear.  It is about submission and the will to power.  Thou shalt have no other gods but the state.  You will bend and you will yield or you will be crushed.  Power is the objective of every move that this administration makes, for them and the rest of the progressive ruling class. 

  3. Barbara Kidder
    simplogic: With due respect Mr. Epstein, this has nothing to do with having a political tin ear.  It is about submission and the will to power.  Thou shalt have no other gods but the state.  You will bend and you will yield or you will be crushed.  Power is the objective of every move that this administration makes, for them and the rest of the progressive ruling class.  · 1 hour ago

    You make a good point, and it is just this point that was the true reason that President Obama insisted on raising income tax RATES, and was not satisfied with just an increase in revenue.

  4. Tom Lindholtz

    They have a tin ear on everything. The American people opposed Obamacare. They didn’t care.

    In point of fact, Obama is, at heart, a dictator who is determined to do to us what he knows we need whether we like it or not. Is that too hard to understand? He has no intention of letting anyone evade his good intentions for them unless they are cronies and/or major campaign donors.

    Get real.

  5. Chris Campion
    Richard Epstein:

    It is a profoundly misguided impulse to assume that the world becomes a freer or more just place when government officials can tell people what they must do and whom they must deal with.

    This is the part that I try to explain to friends and family, and they have the hardest time understanding.  Perhaps its the messenger, not the message – but I simply think they’re not willing to entertain the fact that they become less free when someone tells them what they can and cannot have.

  6. Joseph Paquette

    The obvious and simple solution is to make contraception a universal coverage paid for by the government.  Almost half the country is on some form of government insurance     If you don’t want to get pregnant Obama should buy the contraception, rather than forcing those who object to pay for it.   

  7. ultra vires

    The administration’s argument is this: We want you to purchase ABC insurance, the cost is $20. You object to being forced to purchase C? Don’t worry you only have to pay for AB, C is free. The cost is $20.

  8. Cornelius Julius Sebastian

    Bravo Professor Epstein! Well and nobly done, sir!!

  9. Randy Webster

    I said after the election in 2008 and before the inauguration, that the American people had no idea what Obama’s program was, and that they’d be horrified when they found out.  I guess I was wrong.

  10. Nick Stuart
    Joseph Paquette: The obvious and simple solution is to make contraception a universal coverage paid for by the government.  Almost half the country is on some form of government insurance     If you don’t want to get pregnant Obama should buy the contraception, rather than forcing those who object to pay for it.    · 1 hour ago

    Wouldn’t having universal coverage paid for by the government mean that those who object are forced to pay for it?

  11. Paul A. Rahe
    C

    Alternatively, Richard, the Obama administration does not have a tin ear. It knows what it is doing, and its aim is to sow confusion.

    The interesting question is what will the courts due with the HHS mandate.

  12. Tom Riehl

    Mr. Rahe, you are entirely correct! 

    Questions of this ilk need to be turned on their heads.  Just as with the gun controller’s query about why someone needs a particular weapon, the answer being a retort in reverse as to why they even dare ask.  To quibble over motivation and details about the HHS mandate is to miss the obvious; the government has no standing to even make such an unconstitutional rule.   “no law…prohibiting the free exercise thereof” is just as forthright a statement as “shall not be infringed.”  Crikey!

  13. Devereaux

    Interesting comments, generally spot on. Prof Epstein makes clear and cogent – and brief – argument.I am only amazed that he cannot seem to extend these exact same argeuments to the 2nd Amendment.

  14. Z in MT

    Douglas Murray on Delingpole’s pod-cast said something profound about the Liberal-DemocratConservative coalition in the British Parliament on economics.  Basically, he said they will never understand what they need to do fix the dire fiscal and economic situation in Britain because their world view doesn’t allow them to get it.

    The same could be said here of the Obama administration and the left.  The Left’s worldview of positive rights morphs things like a woman’s right to contraception access into an entitlement to contraception that must be enforced by government.

  15. Nick Stuart
    Richard Epstein: The recent announcement by the Obama Administration that it has once again sought to accommodate the concerns of religious groups that are required to provide contraception under the Affordable Care Act is a testimony to its tin ear on matters of religious liberty.

    Credit is due to Prof. Epstein for granting that the Obama Administration is acting in good faith and has actually “…sought to accomodate the concerns of religious groups…”

    Being unwilling to extend that courtesy, as in my opinion the Obama Administration has forfeited it, I do not believe any such thing.

    Rather they have made another attempt to obfuscate the issue, pretend for their sycophants in the media, and fool low-information voters.

    The Obama Adminstration has not the remotest intention of seeking to accomodate the concerns of religious groups. It’s intention is to ratchet the culture ever leftward, tiny click by tiny click.

    Force Hobby Lobby and Tyndale House to pay for morning after pills today, force them to pay for abortions and sex-change operations tomorrow, force “houses of worship” into paying for the whole kit the day after that.

  16. Z in MT

    We conservativeslibertarians have to constantly fight this positivist worldview and return the understanding of rights as only those things that don’t place obligation on other individuals to exercise.

    We have a right to free speech – but that doesn’t require CNN to broadcast my rantings on the street corner.

    We have a right to bear arms – but that doesn’t require anybody to give me an AR-15.

    We do not have a right to healthcare because that obligates a doctor, nurse, or pharmacist to give us that healthcare.

    We do have a right to access to the healthcare market.  (i.e. A law that denies access to the healthcare market to some individuals would be unconstitutional, i.e. Jim Crow)

    If as a society we decide that government should supply healthcare to it’s citizens then the government should levy a tax and have government healthcare, which may or may not cover contraception.  I would argue however, that this must be done at the State level as the Constitution does not give the Federal government this power. 

  17. Z in MT

    “Force Hobby Lobby and Tyndale House to pay for morning after pills today, force them to pay for abortions and sex-change operations tomorrow, force “houses of worship” into paying for the whole kit the day after that.”

    The federal government shouldn’t have the power to force them to purchase any health insurance, let alone the kind of insurance.  There is no logical tie between healthcare and employment, therefore what is the justification for forcing employers to provide health insurance?  Historical happenstance?

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