A Dangerous Mandate

By Audrey Pollnow ’13

Any issue relating to religious liberty and reproductive health is a likely sparring ground for the left and the right, and the recent conflict over the contraception mandate has proven no exception. Democrats view it as progress for women’s rights, but to Republicans, it is an attack on religious liberty. At the core of the debate is the question about what rights are: Is the “right to contraception” a requirement that it be legal and available? Or, does it mean that other people must provide it for you? In fact, by the logic of liberalism and of the Patient Protection and Affordable Care Act (PPACA), the mandate is foolish and unnecessary.

The Court’s Insufficiency

There are many interesting constitutional questions at play, but in a republic like ours, the validity of a law should not be answered merely with respect to whether the Supreme Court will strike it down. If voters and legislators fail to concern themselves with the constitutionality and fittingness of our laws, the Court has no choice but to maintain the interpretive authority which it has acquired. This, of course, discourages judicial restraint and also divorces our nation’s political project from the values of the constitution.

This is particularly pertinent in cases of religious liberty, in which it’s unclear how a secular government can develop a standard of what practices are prohibited. As the Court argued in Lukumi Babalu Aye v. City of Hialeah, “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” The Court, however, has yet to discuss where else the protection of the Free Exercise Clause might pertain. (The phrase “at a minimum” surely suggests that some cases might exist.)

Indeed, the standard described here leaves religion in no way distinct from free speech. As the Court found in Texas v. Johnson, prohibitions are unconstitutional if they are motivated by an opposition to the ideology an action expresses. (This follows a parallel condemnation of prescriptions, established in Barnette v. West Virginia State Board of Education.)

But religion is critically different from speech. The content of religious actions is not merely expressive or merely ideological. This means that religious oppression need not consist solely of prohibitions on actions whose likely motives are deemed objectionable and on requirements aimed at instilling a certain religious (or anti-religious) sentiment. There is a reason that the First Amendment explicitly protects freedom of religion as distinct from freedom of speech. There must then exist an additional standard for freedom of religion to the one described by the Court—one that is not entirely contained in protection on free speech.

This, of course, presents a number of problems. Presumably, some religions require practices which cannot be allowed, or prohibit practices which the state must require. (Human sacrifice, heroine use, and a refusal to feed young children come to mind.) Some citizens might believe it’s sinful, or contrary to their conscience or religion, to pay taxes to a government which funds an unjust war. But, if the government allowed conscientious objectors to pay fewer taxes, there would be a free rider problem, so we punish those who refuse and deem this constitutional.

So, a complete standard is not readily apparent. The beginning of a solution should then rely on democratically initiated civility and a culture of sensitivity to the moral needs of our fellow citizens: even if there are constitutional laws which would have the effect of requiring kosher restaurants to serve bacon, we should try to avoid them, as we should resist health codes which would prohibit Orthodox churches from serving Communion.

The Relevant Rights and Civil Society

The current contraception mandate significantly burdens employers who believe contraception is wrong, most notably Catholics. By requiring these employers to buy healthcare plans which provide their employees free contraception (contraception which the employees would otherwise have to pay for), the mandate forces them to directly subsidize something which they believe to be harmful.

By requiring employers to provide healthcare in general, PPACA recognizes an important truth: that employers have real moral obligations to their employees. But if the administration wishes to foster this relationship, it must leave employers free to act morally towards their employees. If it instead demands that employers provide employees with products the employers believe are harmful, employers cannot but develop a lesser sense of duty to their employees. By complying with the standards, they have shown that their loyalty to the state exceeds whatever obligation they might have felt to their employee. Their relationship will then become more like the one I have with another random taxpayer or with someone else in the market—and less like the one I have with the fellow who lives across the street, with my grocer, or with my parents.

Freedom of thought and speech requires more than the ability to say and believe what you want in limited circumstances. What we think is importantly affected by what we do and by the people around us. Children who grow up in a segregated school have had their freedom of thought impeded (though not eliminated) because they are surrounded by and thus biased towards a bad ideal. Similarly employers who follow a mandate, whether it be for a good action or a bad one, are encouraged to view the mandated action more favorably.

The contraception mandate is, of course, not morally neutral, but nothing the government does can be. The selection of ends to pursue and means to employ is necessarily normative. This is why liberalism benefits from a limited government: if we cannot agree about which values ought to be followed, we will allow a broader range of beliefs by avoiding government action in that sphere (we can agree to disagree). Perhaps at times it is fitting for the government to encourage certain beliefs on the part of its citizens, as occurred with segregation, but this should only occur when our nation rightly identifies something as harmful. Sexual ethics is an area in which we seem committed to allowing a great plurality of viewpoints and practices, of which it would be absurd to suggest an unwillingness to facilitate contraception is the most dangerous.

Much of the contraception debate has been couched in the language of rights: a person’s right to free contraception versus another person’s right not to provide it. If we are to use these terms, it’s difficult to argue that the right to religious liberty, explicitly enumerated in the First Amendment, should not be decisive. Indeed, it is clear that access to free contraception is not a fundamental right (the right to free products cannot exist unless before the product exists and our society has sufficient means to provide it), and there are more basic prerequisites to living a good life in our society, access to nutritious food, for instance. Moreover, the right to free contraception is claimed as a positive right, one which obligates other people to act (rather than one which prevents them from doing something). On the other hand, ending the contraception mandate would not require anyone to do anything, without preventing access to contraception.

Moreover, this is something that can be solved easily without creating a free rider problem. Conscientious objectors to contraception could elect for health plans that provide free natural family planning education and products or even those that give cash to their members in an equivalent amount. This would allow people access to contraception who want it, without requiring anyone to violate their conscience or religion.

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