Contraception, Once Again

English: Picture Of Ortho Tri-Cyclen oral cont...

Could this get you fired?

While wars rage on and the economy continues to limp along for the working class, considerable attention is still focused on contraception. On the one hand, this can be seen as a mere distraction from what should be regarded as more important matters. On the other hand, it can be regarded as a fundamental struggle over rights.

One key conservative talking point regarding contraception coverage is that the real issue is whether or not the state has the right to require health insurance providers to cover contraception. This, of course, falls under the more general issues of whether or not the state has the right to compel health insurance providers to cover anything at all. Naturally, this falls under the very general topic of the legitimate limit of the state’s compulsive powers.

Since I just wrapped up discussing John Locke in my Modern Philosophy class, my inclination is to say that the state’s legitimate purpose is the good of the people and it is limited in what it should do on the basis of the rights to life, liberty and property. As might be imagined, this general guide is not very helpful in this matter. After all, it can be effectively argued that compelling such coverage would be for the good of the people and it can also be effectively argued that doing so would be an imposition on the liberty of the providers.  As in most such cases, my inclination is to take the stock approach of weighing the good of the imposition against the badness of said imposition. For example, some people argue that the state should have the right to use its compulsive power to ensure that a person can only marry one other person (at a time) and that the other person must be of the opposite sex. In supporting such a view, the usual argument (apart from the appeals to religion and tradition) is that same sex marriage and polygamy are harmful to society. As such, the liberty to marry as one pleases must be taken away using the compulsive power of the state. Interestingly, many of the folks who are opposed to compelling  contraceptive coverage are in favor of using the compulsive power of the state in the domain of marriage. As such, they apparently do not have a principled objection against the state compelling people in regards to their moral beliefs. Rather, their view seems to be that as long as the state is compelling the right people, then such compulsion is fine. Of course, a person can be against contraception coverage and not be against, for example, the state using is compulsory power to impose a specific moral view in regards to marriage. In fact, one way to argue against the compulsion of contraceptive coverage is to argue against state compulsion in all matters other than those that involve harming others. So, for example, a person could be consistently against the state compelling a specific religious/ethical view of marriage and against the state compelling the coverage of contraception.

In regards to the matter of coverage, I am willing to accept (and in fact insist on) the principle that the burden of the proof is on the state in regards to compelling such coverage. That is, it is up to the state to show that such coverage should be compelled by law. This is a general principle that I accept, mainly on the assumption that there is a presumption in favor of liberty.

One standard way to argue for the legitimacy of state compulsion is to show that something is harmful (generally to others rather than just to oneself) and thus the state, under its legitimate role as protector of the life, liberty and property of the citizens, has the right to compel. This approach seems quite reasonable and is used to justify such things as the state compelling people to not murder, rape, or steal. As should be clear, this approach does not justify compelling coverage. After all, it is not preventing someone from wrongfully inflicting harm on another. Of course, this is a rather minimalist view of the state and one that only the most ardent libertarians seem to hold.

Another standard way to argue for the legitimacy of state compulsion is to show that compelling it creates a public good that warrants the imposition on liberty. For example, drafting people in times of war can be justified on the grounds that the public good requires such service. As another example, the compelled  paying of taxes to provide for roads, police, defense, fire departments, schools, bridges, and so on is justified on the grounds that this serves the general welfare and the common good. John Locke argues for the state using its power to serve the general good and, of course, American government is supposed to have a legitimate role in providing for the general welfare. In general, it seems fair to say that the idea that the state should compel people to act for the general good only seems odd when it is proposed that the state compel something that a person does not like (like contraceptive coverage). When the state is compelling people to do what someone wants, it generally seems perfectly reasonable to that person. However, it would be rather nice for folks to have a consistent general principle regarding under what conditions the state can compel (other than “in cases in which the state is doing what I want”).

As with all conflicts between liberty and the general good, one key part of the dispute is whether or not the imposition on liberty is warranted by the gain to the public good. For example, compelling me to pay my taxes is warranted by the fact that my contribution is needed for the general good.

In the case of contraceptive coverage, the argument rests on the assumption that preventative care should be covered (this is already a matter of law, but naturally can be challenged on moral grounds) for the general good. If this assumption is accepted, then the question that remains is factual: should contraception be considered preventative care? The experts at the bipartisan  Institute of Medicine have claimed that this is the case. Given their expertise, I am inclined to accept their opinion over that of non-experts. As such, it would seem that contraception should thus be covered.

Of course, it can be countered that the coverage preventative care should not be compelled by the state and that the insurance providers should be free to cover or not cover what they wish.

This does, of course, have a certain appeal. No doubt folks in all industries feel imposed on by the state compelling them in regards to what they can do or not do. For example, those in the food industry probably are not thrilled that the state imposes restrictions on what they can sell as meat and that they are required to divulge the contents of their products to the consumers. However, these compulsions are justified by an appeal to the common good. Likewise, the imposition of contraceptive coverage can be warranted on similar grounds. After all, such coverage is claimed to have numerous benefits for the people covered as well as the general public (such as lowering the number of unwanted pregnancies and all that entails).

It might be countered that the coverage of contraception violates the ethics of some employers (such as the Catholic Church) and thus contraceptive coverage is a very special case. In fact, Arizona is considering a bill that would seem to allow employers to fire employees for using contraception. In these cases, the argument is that this is a matter of religious liberty. As I have argued at length in other posts about this, I will not repeat my arguments here. I will, however, add that these cases are not clear cases of a cruel state imposing on the liberty a hapless church, insurance company or employer. Rather, there is also the rather important matter of the liberty of the employees and their rights.

There is, of course, a stock view that employees have no right to expect their employers to respect their rights or liberties as the state is supposed to respect them. On this view, our rights and liberties exist relative to the state and not relative to employers. However, I am inclined to follow Locke here and take the view that our rights are not merely against the state, but also against each other. As such, it is just as wrong for my employer to compel me in ways that violate my rights and liberty as it is for the state. At the very least, if the state lacks the right to compel them to provide coverage because they disagree, then they would seem to lack the right to compel their employees to conform to the ethics of their employer.

It might be countered that such rights are only for the powerful (churches and employers) and that the weaker folks (such as employees) must take it or leave it. That is, an employee who wants to work has to be willing to accept the moral imposition of his employer in this matter while his employer has a perfect right to not be imposed on in such a way by the state. If the employee doesn’t like that her employer  refuses to include coverage of contraception in the health care benefits, she can just go and find another job. If she cannot, then she will have to accept being unemployed or she must conform to the religion/morality of her employer.  This, of course, seems to be rather wrong. After all, it seems rather absurd to justify an imposition on liberty on the basis of an appeal to liberty. Of course, this is nothing new: in the pre-Civil War South people routinely argued that forcing the southern states to give up enslaving people would be a violation of their liberties.

In light of the above discussion, mandating the coverage of contraceptives does seem to be morally acceptable.

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  1. As on many other issues we will be surprised at just how fast Obama can ‘change’ into reverse. No doubt about it, a major political blunder.

  2. Mike;

    Thank you for a very good analysis.
    I have a question; when you analyze opposing ethical principles or opposing individual/state/employer rights, is there a hierarchy of values or a study with points which overcomes the other? Or each case is study individually? If the answer to this question is too long can you point me to any literature

    Finally I agree with yor conclusion, and I hope the participants focus on the philosophical, ethical questions and not in US ‘politics”.

  3. Juan,

    That is an excellent question. One core problem in ethics is sorting out those sorts of problems, such as when the rights of various individuals or collectives clash. For example, it seems reasonable to accept that people have a liberty of conscience (Mill argues quite well for this), but this can conflict with the rights of others (such as the employees of a person who thinks contraception is morally wrong).

    Utilitarianism offers a way to settle such conflicts-crudely put it is a matter of weighing the negative and positive value (such as pain and pleasure) of the various factors in play. For example, if allowing employers who oppose contraception on moral grounds to refuse coverage to women employees would create more negative value than positive value for society, then the employers should not be allowed this liberty.

    Naturally, there is the concern that people can have their rights unjustly violated by appealing to the “greatest good for the greatest number” principle and this is a legitimate point of concern. Philosophers often present scenarios in which the many can benefit greatly by doing something intuitively terrible to the few (such as starving people on a raft killing and eating one of their number after a vote to that effect).

    In my own case, I do respect people who have a sincere moral objection against contraception (I actually know people who do). Folks who oppose it to get political points or from misogyny don’t get my respect (which I am sure hurts them not at all). However, I believe that the weight of argument is in favor of contraception being both acceptable and legitimately falling under preventative care. I am, as always, open to compelling opposing arguments.

  4. Mike, there seem to me to be several separate issues here. E.g. we could ask the following questions:

    1. Is this law a law that a reasonable electorate could support, falling within some kind of legitimate discretion that electorates and elected legislatures have, so that it ends up being an acceptable or legitimate (in some sense of “acceptable” or “legitimate”) outcome of the democratic process? E.g., can it reasonably be said to have a secular purpose?

    2. Is it a law that I, personally, should support, given my own values and the weights put on them?

    3. If the law is actually enacted, and assuming that the answer to the first question is “Yes”, should the law be read down or partially invalidated by a constitutional court so that it does not have application to certain religious employers (and, if so, which ones?)?

    4. Whatever the answer might be to 3. should it fall within the legitimate discretion of a reasonable legislature to write in exemptions from the law for certain religious employers (and if so which exemptions for which employers would be legitimate in this way?)?

    5. Assuming that the answer to 4. is generally “Yes” … so there is a legitimate discretion for such legislated exemptions from the general law … which exemptions, if any, should I support, given my own values and the weights I place on them?

    It may even be a bit more complicated. Perhaps there are some employers (such as actual churches) that a constitutional court should find exempt as a matter of law. There might be others, such as hospitals or schools owned by a church where, for some reason, the legislature has a legitimate discretion to carve out exemptions. There may be still others, such as a purely commercial corporation owned by a church, where the legislature cannot legitimately grant an exemption from the general law.

    Once we start formalising this into categories, we can see how messy it really gets – the categories I’ve given may need further and further refinement. But we most certainly can and should make these sorts of distinctions.

    (I should also say that, although I don’t get into an analysis with all these formal categories, I do try to take these sorts of distinctions into account in Freedom of Religion and the Secular State so I urge you to read it if your university library buys a copy (I won’t be so venal as to urge you to go and buy a copy of your own). Unfortunately, we did not have the “contraceptive mandate” example at the time I wrote the book – as you know there is a lead time of some months before submission of the final manuscript of a book and eventual publication.)

    The point is that there may not be a simple answer here. For example, the answer I give might be that the contraceptive mandate law is legitimate in some sense (such as a reasonable constitutional court would determine that it fell within the discretion of a reasonable legislature to enact such a law) BUT it is not a law that I personally would vote for BUT once it is place it legitimately covers all employers BUT a legislature should (in some sense of “should”) carve out its own exemptions for certain categories of religious employers whose activities are reasonably needed for the religious organisation to function (such as the church itself and its priests, nuns, etc.) but should not carve out exemptions for others (such as commercial businesses owned by the church), and for still others perhaps it should carve out only limited exemptions (perhaps for employees charged with teaching moral doctrine in a religious school, but not for the janitor in a religious school). And so on.

    From my point of view the particular example is even messier because the use of employer-funded insurance policies seems like a bizarre patchwork way to provide for what amounts to an ersatz form of public health cover. The simpler approach to contraceptives, for example, would be to include certain approved contraceptives in a schedule of approved drugs subsidised from general revenue.

  5. Dennis Sceviour

    “After all, such coverage is claimed to have numerous benefits for the people covered as well as the general public (such as lowering the number of unwanted pregnancies and all that entails).”

    The argument for state compulsion boils down to this. The presentation is well analyzed. However, I do not agree. Compulsory population control is unconscionable when there is so much to do for the exercise of free will. Freedom to have as few children as parents want, freedom to be educated to birth control, and freedom to choose to abort unwanted children are desirable. But legislated population control is out of the question.

  6. Dennis;

    That is a particular read of Mike’s comments. Could you please explain where in any part of his comments he alludes to legislation population control?
    It feels as a very strange read with no bearing on what the article actually says
    How does “After all, such coverage is claimed to have numerous benefits for the people covered as well as the general public (such as lowering the number of unwanted pregnancies and all that entails).” differes from “Freedom to have as few children as parents want, freedom to be educated to birth control, and freedom to choose to abort unwanted children are desirable”

    Would you please explain?

  7. If we take into account the accepted definitions by the Medical proffesion of health and healthcare, it is clear that contraception is part of healthcare.

    The World Health Organization (WHO) defined health in its broader sense in 1946 as “a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity
    Medical dictionary definition of healthcare: The prevention, treatment, and management of illness and the preservation of mental and physical well-being through the services offered by the medical and allied health professions.

    These defitions clarify why contraception is healthcare.

    The decision to include contraception among other services to list of services was based on the recommendations of the medical proffesion. The Institute of Medicine, the American Congress of Obstetricians and Gynecologists, the American Academy of Family Physicians and the American Public Health Association, based on science and existing literature, recommended that approved contraceptives should be fully covered by insurance plans.

    The insurance coverage of contraception will have a positive impact not only on public health but also in reducing healthcare costs:

    A national survey found that an estimated 49% of all pregnancies in the United States were unintended in 2001.

    The direct medical cost of unintended pregnancy in the United States was estimated to be nearly $5 billion in 2002. The cost savings due to contraceptive use in that same year was estimated to be $19.3 billion.
    Based on these facts it seems to me that the inclusion of contraception in health insurance has its merits.

  8. FWIW, I think it’s a legitimate law (e.g. it has legitimate secular purposes) and I personally would vote for it if there were no more rational alternative that the American patchwork of health coverage (but don’t expect everyone else to vote for it … e.g. some people might simply, and reasonably, think it is a low priority issue). I don’t think it should have exemptions carved out by the courts and if I’m wrong on that I think they should be very narrow. I don’t, in this case, object to narrow exemptions by granted by the legislature (and this has actually been done, as I understand the situation).

  9. Dennis Sceviour

    I do not know how to elaborate on the obvious. Population control is effected by “lowering the number of unwanted pregnancies”, which is the argument presented in the article. The issue of free will versus state compulsion is an old issue.

    However, I agree that the civil liberties issue is becoming fuzzy. For probably the first time in its history, the ACLU is demanding that the government interfere in the affairs of people:

    If this approach takes hold on the imagination, then the traditional meaning of liberty is lost in a semantic jargon of “legislated liberty”. Law cannot enforce liberty. Law can only process dispute.

    Although Mike LaBossiere has previously stated he is committed to the concept of rights, this is probably the first article I have noticed the extensive use of the word right (26 appearances). He appears to use the word right in at least three different contexts:

    (1) Right as in protection by law or the right of state compulsion when Mike states “rights are only for the powerful”
    (2) Right as in protection from the law as in the American Bill Of Rights, or “rights to life, liberty and property.”
    (3) Right as in judgement of the “right people”.

    It is for this reason that I avoid using the word right unless necessary. It there is no disagreement, I propose that the meaning of right be restricted to the second meaning when discussing political philosophy or jurisprudence.

  10. Dennis;

    I do not understand what is obvious:

    Is it obvious that “lowering the number of unwanted pregnancies” interferes with the free will of not being pregnant?

    Is it obvious that assuring the free will of not being pregnant (“lowering the amount of unwanted pregnancies”) translates into legislation of population control?

    I am truly confused about of what is obvious.

    “However, I agree that the civil liberties issue is becoming fuzzy. For probably the first time in its history, the ACLU is demanding that the government interfere in the affairs of people”

    How is the goverment interfering with the affairs of the people? Is it by assuring and helping them to get what they need? Several polls conducted before all this issue started showed that around 70% of the population desires contraception to be covered by insurance.

  11. Dennis Sceviour

    I am sorry for the confusion. You are right, around 70% of the population desires contraception.

  12. Russell Blackford: “FWIW, I think it’s a legitimate law (e.g. it has legitimate secular purposes) and I personally would vote for it if there were no more rational alternative that the American patchwork of health coverage…”

    Actually, I think it is probably and illegitimate law which is proposed primarily because of the irrational nature of “the America patchwork of health coverage”. Health care, like education, should be handled by the state, with options for private organisations to offer alternatives or extras. Much, but not all, of the current dispute would then disappear. (Perhaps that last remark is more than a little optimistic, given the influence of religion in US politics.)

  13. Quite so, Keith, but you have to enact laws from where you are. Could you really see a court striking this law down as irrational on the basis that the entire healthcare system in the US is irrational?

    I don’t think a court could or should do such a thing, though agree with you that, in a slightly different sense (not a sense that I think the courts should be using) the patchwork healthcare system in the actually is irrational – it’s jerrybuilt and inefficient. To outsiders, it seems crazy. But courts start to act too much like legislatures if they use those sorts of criteria in making their judgments. It’s getting too much like into the merits of what are good laws and policies, all things considered, which is not a justiciable question and really can’t be turned into one without making the courts even more politicised, etc.

  14. There is a general principle in law that one should not be asked to do an illegal thing, and if you are contracted to, it is not binding. In military terms if you are ordered to commit a warcrime, that you can reasonably understand and disobey, then you are expected to not follow that order.

    So the question in this context is: “are all contraception laws legally binding on all people, when they are persuaded in good conscience that it is unethical?”

    Personally I might agree (as many Catholics do) that contraception to prevent STD and help manage the spacing between children and the number of children in the family reasonable (there is even a case that this is some respects is sanctioned), but the use of certain contraceptive interventions that abort a conceived zygote or early stage embryo is thought unacceptable by many.

    I do not think blanket objections to people (religious or not) exercising their conscientious objection to be wrong.

    This is not necessary a popular supported position. And it is not as if legal experts all together agree with the position of the US Government on this either.


  15. God was volcanic activity.

    Please do something about it.

  16. But, Martin, this isn’t about whether an employee or a military serviceman is required to obey a direction from a superior to do something that is illegal. It is about such things as whether or not the law itself is constitutional (both in its entirety or in its application to certain employers and/or employees); whether it falls foul of political principles such as freedom of religion, the requirement for a secular purpose, etc.; and whether it is something that we’d vote for as individuals, given our priorities and so on. Maybe your links shed some light on what you mean, but I’m familiar with the principle that you state – and I can’t see it as very relevant here. If the law is constitutional, then no one is being ordered to do something illegal. (In any event, even without this law, it is not illegal for an employer to provide employees with health insurance that covers the cost of contraception.)

    If you’re just saying that one thing legislatures should take into account when they enact laws is the danger that some people’s consciences may be forced, then I agree. That is one factor that should be taken into account by legislatures. Another is the effect on achieving the purpose of the law if we exempt some people or organisations. Legislatures need to weigh up those things, and they have a broad discretion to do so, but I don’t think there is any standing constitutional or moral right never to have your conscience forced.

    The suffering caused when people’s consciences are forced is just one more thing for legislatures to weigh up in the policy-making process. In this case, I don’t think it should have much weight. If individuals were actually being required by the government to use contraception against their will, it would be a different matter – that could cause real suffering to individuals who object conscientiously to using contraception, and this should be given some real weight. I’d oppose such a law, and it would probably be unconstitutional in the US anyway, as being repugnant to the implied constitutional right to personal privacy.

    But nothing in the law we’re talking about actually requires any individual to use contraception. At the worst, it makes the directors and managers of employing organisations very indirectly complicit in the choices of certain employees to use contraception. That, I’m afraid, can be a cost to being a manager or a director of an organisation that employs people (or of choosing to become an employer in your own right). Employers wield private power over employees, and the state will often want a say in how it is wielded.

    (All that said, using regulation of the employer/employee relationship as a means of handling these public health issues still seems crazily inefficient, indirect, incomplete, etc., to anyone who lives outside the US. But that’s another issue.)

  17. @Russell,

    Hi –my point is that a persons conscience that something is not legal should be seriously considered when they object to being legally forced (and in this case it is not being forced to use contraception, but being forced to provide it to their employees as part of a mandatory health plan). Another case example would be being obliged to offer your employees free access to alcohol, even to the extent of providing the drinks, whilst at work — it is not unreasonable, even given rights of free choice, for an employer to restrict those whilst at work. (PS: I once worked on a consultancy project in NSW/Australia for Channel 9, when it was owned by Bond Media, and all depts had a fridge with Swan Lager in it for employees – this was shortly before Bond Media being declared a company unfit to run a communications company!)

    There are times when these considerations can be reasonably overruled (e.g., allowing female employees to take maternity leave with benefits, even though it makes it less attractive in employing females relatively to males). But there are consequences, particularly if this is a majority, or large minority being obliged to provide something specific to others, when they think it’s an ethically wrong practice, it’s a matter of finding balance.

    I think you acknowledge this point generally speaking, so no need to go on about it.

    My links are related to:

    a) Many lay people, senior law makers and academics think what Obama is requiring of some bodies is illegal (Link 1 and 3).
    b) It is suspected that a majority of Americans(at least for those contraceptives that terminate a conception at an early date) oppose that being made available on demand via the plan (Link 2).

  18. As such, it is just as wrong for my employer to compel me in ways that violate my rights and liberty as it is for the state.

    This is not strictly true. If I work for company A and use my 1st Amendment right to free speech and accurately describe the poor customer service practices then I can be fired. More so if I signed an employment contract stipulating I would not do such things. Most workplaces require you to give up your 2nd Amendment rights, at least on their property.

    If employers do not wish to pay for insurance that provides service X then give the employee the benefit in cash and allow them to choose any health coverage they wish. As has been assiduously ignored, health companies want to provide contraceptive cover because it’s cheaper for them!

  19. Okay, Martin, but the principle in, for example, military and war crimes law, and in employment law, that no one should give a direction to do an illegal act (and that no one should obey such a direction) is a quite different one from the principle (if such exists) that laws should not be enacted that force people’s consciences by requiring them to do legal things that happen go against their individual moral beliefs.

    So it’s not about someone’s “conscience that something is not legal”, but it might have to do with someone’s conscientious belief that some action is morally impermissible (or that some legally forbidden action is morally required).

    Still, as you say, I do acknowledge the point that governments should take into account the suffering that they cause if they force people to act contrary to their consciences. But that will depend on who is actually being forced to do what. Also, legislators should also take into account the harm that can be caused by granting an exemption from the law, which was presumably enacted for some good purpose, or by making any exemption unnecessarily broad. This is an area where balancing might be required in tailoring the law, including any exemptions, and I think there is some legislative discretion to weigh the values in a particular case. Different reasonable legislatures might make different laws in the same factual situation.

    (It won’t surprise you that I discuss these issues at some length in my book.)

    I haven’t read your links, but I doubt that anyone thinks that what is ordered by the law is something illegal. They might think that the law is ineffective in its application to some employers, because of some sort of constitutional repugnance or some such thing. But the law doesn’t require employers to do anything illegal. Even now it is perfectly legal to provide employees with health insurance that includes cover for contraception.

  20. @Russell

    You say…

    “but the principle in, for example, military and war crimes law, and in employment law, that no one should give a direction to do an illegal act (and that no one should obey such a direction) is a quite different one from the principle (if such exists) that laws should not be enacted that force people’s consciences by requiring them to do legal things that happen go against their individual moral beliefs.”

    But as I pointed out in one of the links I provided, and commented on later, that many Legal professionals and academics think what is being asked of those religious affiliated companies is a violation of constitutional law, relating to freedom of religion, and thus not required of them. If this is true, as they say, then it is a case of requiring a company to do something that they may reasonably think is legally not required.

    It would be the like saying all employment must be indifferent of sex, and asking a Church to thus employ males and females in all employment roles without discrimination. But this is well accepted as being an infringement of Religious Freedom (of many religions).

    If you grant some bodies religious freedoms, and find that inconvenient later on for implementing broad stroke legislation, then it is a genuine issue. You need to look either a redacting the specific law or religious freedoms. The latter would require a constitutional amendment (I think) that says religious freedoms are subject to denial when inconvenient to implementation of other “superior” secular rights.

  21. I extract from the link provided the point being made by the Legal Professors…

    Two BYU law professors joined more than 100 prominent scholars to lay out objections to a compromise proposal by the Obama administration on a policy requiring employers to subsidize free contraception, sterilization and abortion-inducing drugs.

    Professors Cole Durham and Lynn Wardle, both of BYU’s J. Reuben Clark law school in Provo, joined a letter whose primary authors include Catholic University President John Garvey, Harvard Law Professor Mary Ann Glendon and Princeton Law Professor Robert P. George. George is a member of the Deseret News Editorial Advisory Board.

    “This so-called ‘accommodation’ changes nothing of moral substance and fails to remove the assault on religious liberty and the rights of conscience which gave rise to the controversy,” the letter reads. “It is certainly no compromise.”

    “The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health insurance contract that provides abortion-inducing drugs, contraception and sterilization,” the letter continues. “This is a grave violation of religious freedom and cannot stand. It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims and other people of faith and conscience to imagine that they will accept an assault on their religious liberty if only it is covered up by a cheap accounting trick.”


  22. OK, I’m still missing something… Exactly HOW is not providing something, anything, equivalent to preventing someone from having it? Ok, it is clear that unless someone with a lot of money provides me with a yacht I will be prevented from having one. For items of moderate or minor expense, however, it is entirely unclear to me how someone not providing me with, say, groceries – or even a daily Starbucks cup of coffee – is equivalent to preventing me from having those items.
    If an insurance company (or employer in this case – or government – or anyone else) decides not to provide something of moderate expense, arguably less than the cost of a daily cup of Starbucks, how is that tantamount to keeping nearly any individual from having that desired item?!? I don’t hang out protest signs because my company doesn’t provide me with daily Starbucks – accusing them of ripping me off… how is providing contraception any different? Indeed, there are employers who do provide such a service – golly, wish I worked there – but I don’t, so se-la-vie!
    And if you want to up the ante a bit, I have to take a daily aspirin for back pain as well as helping me avoid a heart attack. Both goals are arguably helpful for my general health – even helping make me a more productive employee as well. If my insurance or employer wished to pick up the cost of the aspirin, I’d be most grateful; if not, again, se-la-vie; I can afford the aspirin. Yea, it may mean tightening the financial belt a bit to keep me vertical, but if that’s what it takes, then that’s what it takes – and I’m not lookin’ to sue anyone or blame others for not paying for my personal misfortune, whatever it may be!
    Yea, I get it, if I were impoverished, then the yacht analogy starts to apply to the argument, but it seems to me that Planned Parenthood’s more than ready waiting in the wings to help with the ‘pill’ in this particular case. While many do work below the poverty line, unfortunately, for the vast majority however – if you’re working, you’ve got income for necessary aspirin – or the ‘pill’ – as needed. Unless, of course, you’re spending $3,000 per year on the stuff as a 30 year old law student claimed.
    Finally, two other notes about aspirin vs the ‘pill’. First, they both cost about the same – and secondly, according to more conservative talk show hosts, they can both be used to prevent pregnancy – nah… better ignore that second note…

  23. I agree with Bill Smith (and no we aren’t related). If people have a ‘right’ to contraception, then they certainly have a ‘right’ to food and shelter and so on as well, and any argument that the state (or some private business compelled by the state) ought to provide one will work to argue that the state ought to provide them all. I’m aware that some people posting here will have no problem with the notion of the State taking from the rich to make sure the poor don’t have to work at all if they don’t want to. But it remains the case that there’s no compelling reason why contraception is a more pressing thing to provide people for free than food is. With no reason to favor it, and at least a tacit reason to oppose it (the potential religious rights violations), I see many other ‘needs’ the State should be providing before this one.
    Also, I don’t see how the same-sex marriage and contraception issues are a fair parallel. Compelling behavior that violates a person’s religious liberties to me seems completely different than outlawing a behavior- especially when the behavior to be outlawed isn’t even a behavior, but a legal status. The State refusing (hypothetically) to change the definition of marriage to suit a special interest group at the expense of another special interest group is qualitatively different than the State taking on an expense (or forcing a proxy to take on an expense) that violates the First Amendment.
    I do appreciate the reference to polygamy, though- yes, the arguments that justify same-sex marriage justify polygamous marriage (and incestuous marriage I may as well add) at the same time.

  24. Martin said: But as I pointed out in one of the links I provided, and commented on later, that many Legal professionals and academics think what is being asked of those religious affiliated companies is a violation of constitutional law, relating to freedom of religion, and thus not required of them. If this is true, as they say, then it is a case of requiring a company to do something that they may reasonably think is legally not required.

    Yes, I understand that. But saying that they are being told by the government to do something that they think is legally not required has nothing to do with it. It might turn out that they are not legally required to do it, and the constitutionality of the law was uncertain. But there’s principle that the legislature cannot enact laws whose constitutionality is uncertain – it happens all the time, and if needed the courts will settle the issue as to whether the law was unconstitutional or not.

    It’s no use telling me that there are people who think the law is unconstitutional (in its application to religious employers). All that shows is that there’s some uncertainty about the constitutionality of the law. But we already knew that.

    None of this is analogous to someone being directed by a commanding officer to do something that is illegal. There is nothing illegal about providing certain kinds of health cover to your employees. Even if the law turns out to be unconstitutional, it is not directing someone to do something that is otherwise illegal. That idea has absolutely nothing to do with it.

    I don’t actually think the law is unconstitutional in its application to religious employers, except perhaps in relation to the employment of nuns and the like, and in relation to the church itself (and as I understand it those situations are being accommodated in the legislation anyway).

    It’s possible, I suppose, that it might fall foul of the Religious Freedom Restoration Act, which uses a different concept of religious freedom from that in the First Amendment and was itself found to be unconstitutional. It does have some residual force that may apply here. Or the law may be invalid, wholly or partly for some other reason that I’m not aware of.

    But in any event, even if this law is not binding in its force because it is unconstitutional or for some other legal reason, that it not the same as it directing anyone to do something that would otherwise be illegal. It simply does no such thing.

    I’m not denying that there is at least some uncertainty about its constitutionality – in whole, or in part of its application – but that is an entirely separate question from the question as to whether it orders anyone to do something that would otherwise be illegal.

  25. @Russell

    Well those Legal experts and academics I link to express no uncertainty in their opinion that the proposal is a clear infringement of religious liberties that are protected by law. This is less of a philosophy point than a legal one perhaps.

    It may be possible to argue that it is not illegal to oblige a party to offer contraception, since the issue of ethical concern is the use of contraception not its provision. But being obliged by law to give free access could be argued to make that party an accomplice to what they would consider an unethical act. An act their constitutional rights to religious freedom would protect them in resisting that obligation. Nevertheless in resisting they become legally exposed, so its a fine point.

    This whole episode is an example of the zeal of some secular pro-choice lobbyists who are careless about protecting religious freedoms. They are strident in respect of one set of rights whilst being blind to another. It is sloppy and partial legal thinking and costing Obama politically I think.

    If the administration pushes this through, despite the learned objections, I expect they will find determined resistance from Christians, Muslims and Jewish institutions. They could try and prosecute them and end up at the Supreme court – all in an election year!

    I do hope your book, that I have not read, does not advocate such unbalanced secular rights partiality over religious freedoms. Right now I imagine Obama is telling his advisors they had better find a face saving climb down and way out of this mess, or they won’t have a job in the this or the next administration.

  26. Its a religiously neutral law of general applicability. Its constitutional unless current precedent is changed. There’s a nonzero chance that will happen, but as things presently stand, none of the argument’s against its constitutional are remotely credible.

    Notice, if you will, that the many religious legal scholars who believe this law to be unconstitutional spend a lot of time talking about liberty, and no time talking about case law. There’s a reason for that.

  27. …Could this get you fired?… What an easy way to solve a problem .What a shallow view to show a big moral problem.
    Is that philosophical analyse any more here?

    After all ,Mill said:It is better to be a human being dissatisfied than a pig satisfied…

  28. Dennis Sceviour

    Re: Mara,
    “Could this get you fired?”

    I believe the caption on the picture in the article refers to the Arizona proposal (HB2625) that does not prevent employers from firing female employees who take contraceptives. Mike has done a thorough philosophical analysis that is about as deep as necessary to explore the problem. I am not sure what else philosophy can add. After this, one must guess at political opinion polls, religious beliefs, party politics, and behind the door political bargaining to determine any hidden motives for the Arizona proposal.

    It is the ACLU that is interpreting the meaning of the absence of a specific clause that would protect workers. However, the absence could also be interpreted as meaning the State will not interfere in an employee dismissal. It does raise the question as to how much the ACLU can demand that State legislature can define the protection of workers. There should be some limit or cap. Can an employee in Arizona already take a private civil claim against an employer based on precedent law or current constitutional provisions?

  29. Dennis,

    I’m not a lawyer, but I have had the usual mandatory anti-discriminatory training. Based on those courses (taught by lawyers and their ilk), the general idea is that firing someone who is in a “protected class” on grounds that relate to the class can be the basis of a law suit. To use the obvious example, if my university fires me because I am getting older or because of my ethnicity, then I can bring a lawsuit for wrongful termination. My uneducated guess is that if an employer fires an employee for using contraception, this will result in a lawsuit that will be used to settle the matter.

    My view is that firing on the basis of contraceptive use would be a wrongful act and could probably be classified as discrimination (if a woman is fired, she could probably tie in something about sexism).

    But, the law is just what the law is, so I’ll have to wait and see.

  30. Martin,

    They do have a point. Of course, if they pay their employees and some of their employees use that money to buy contraception, then they are also paying for contraception. Of course, they could argue that once the money is in the hands of the employees, their moral accountability ends. But if that holds, then as soon as the insurance is “in the hands” of the employee, then their accountability would end. After all, the money and the insurance are both compensation-either I am buying the contraception with my insurance compensation or my cash compensation. Of course, there is that bill in Arizona which would seem (on some accounts) to allow employees to be fired for buying/using contraception. So perhaps the compensation we earn really belongs to our employers and it is up to them to decide what we may or may not spend it on.

  31. Keddaw,

    They can, of course, fire people as they see fit. However, if they go about violating these rights and say that they have every right to do so, it would seem to undercut their defense that they should not have these same rights imposed upon.

    Naturally, they can claim that they are different from the state and thus they are free to impose on the rights of employees. However, I am inclined to think that the violation of rights is wrong regardless of whether the state or business is doing it.

    In some ways, employers have more power to violate liberty than the state and can sometimes do so with impunity.

  32. Well, just an opinion from nobody but I think topics like this get seriously derailed. For example, talking about ‘rights’ is completely irrelevant. What government can or can’t do isn’t wedded to ‘right’s. A lot of government is just a society of people agreeing to do something because they think it is a good idea. Highways were built not because of any ‘rights’ but just because people thought it was a good idea and used pooled resources to accomplish it. The contraception rule is the same way. It is just a regulation, like requiring auto manufactures to require seatbelts, or the minimum wage, or the presence of retirement plans. People think it is a good idea and decide to implement it. Period. Now, you might think it isn’t a good idea and can argue why and that is and that would be perfectly fine, but worrying about ‘rights’ is just red herring.

    The argument should have nothing to do with lines of thought like ‘government shouldn’t tell me what to do!’ and should be about ‘Is this a good idea? Why or why not?’ IMHO.

    The state isn’t paying for it anyways, it is a rule for private insurers, (like the seatbelts) and most of them agree with providing it anyways because the costs of providing the pill is cheap compared to the costs associated with child birth and the subsequent costs of insuring the new child. It both provides a desired service while cutting bottom line costs and those seem like good reasons to me.

    As far a conscience goes, sure sometimes the individual is right and the law is wrong, but you certainly can’t abandon rule of law because it isn’t always right which is what conscience exemptions basically do. It allows you to essentially ignore law just because you want to. Problem is there will always be somebody somewhere that thinks some particular law is ‘wrong’, you still can’t get out of being arbiter of whose claims of exemption are valid and whose are not. Better to forget the conscience angle and just work at fixing the law if you think it is in error.

  33. Mike,

    While I am not in favour of any employment contract that limits one outside the actual role, people are voluntarily entering into restrictive employment contracts. Employers can write whatever they like into these contracts and terminate employment should the conditions be breached (likewise, employees can leave contracts should employers breach the contract). Bearing this in mind, I fail to see how anyone’s rights are being violated.

    Surely all that has to happen here is that the government signs into legislation a law that allows employees to take their benefits in kind as a tax free sum as long as they use it to buy health insurance? This allows the employee to shop around, keeps one’s medical details away from employers, and assuages the faux guilt the religious feel when subsidising abortions, contraception and other things that they claim offend their god(s).

    Or have universal healthcare like those nasty socialist Western Europeans, with their high taxes, slow economies, educated workforce, more productive employees, longer lifespans, less obesity, lower infant mortality etc. etc.

  34. Martin, you continue to write posts that conflate all sorts of distinct concepts. E.g. the issue isn’t whether the legal experts you refer to subjectively feel uncertain about constitutionality – which is the point you raise in your latest comment – it is whether the law is actually uncertain in its constitutionality. E.g. are there legal reasons to think that a court’s decision could go either way? Those are quite different things.

    How certain one “expert” subjectively feels either way has nothing to do with it (and how could we even know unless we are mind-readers? Mere expressions of confidence are not very good evidence…).

    To take another example, you keep conflating legality and morality (and at times you conflate the former with constitutionality). You also conflate freedom of religion as understood in First Amendment jurisprudence with the religious privilege of being made exempt from aspects of a neutral, generally applicable law. As long as you keep confusing all these different things, it’s very difficult to sort this out with you.

    On its face, the law is a neutral law of general application, and so the religious employers cannot complain that they are being persecuted in being required to comply with it like everyone else. The starting point is as simple as that.

    There are some further complexities, such as whether such a law can be binding on churches themselves or on such people as priests and nuns, considered as employees. But that is the starting point.

    There is no general right under the constitution to disobey neutral laws of general application merely because you think they require you to do something immoral (not illegal, immoral). Such a right will have to come from a legislated exemption, either within the law itself or in some overriding legislation. There may be reasons to grant exemptions (e.g., as we discussed, not granting them will cause suffering, perhaps significant, perhaps not, to individuals whose consciences are forced). But there are also good reasons for not granting them (e.g. it undermines the effect of the law and the purposes for which it was enacted in the first place).

  35. @Russell,

    You accuse me of conflating my argument, but it seems to me that I have made my position clear enough.

    Please note:

    1/ I have pointed out in my last comment that I acknowledge that this is a legal point for discussion, and my reflection that certain people have more certainty over it than you is not to say that it nevertheless a position that can be contested.

    2/ I specifically say…

    “It may be possible to argue that it is not illegal to oblige a party to offer contraception, since the issue of ethical concern is the use of contraception not its provision. But being obliged by law to give free access could be argued to make that party an accomplice to what they would consider an unethical act. An act their constitutional rights to religious freedom would protect them in resisting that obligation. Nevertheless in resisting they become legally exposed, so its a fine point..

    Thus I am clearly acknowledging the points of difference of legality and conscience, but also bring into the issue of complicity, and how the rejection of being made an accomplice leads to a legal issue. Hence why it is a fine point. Fine points of argument are not conflation.

    3/ I go onto say that if it was contested, by the law being passed and the affected parties not complying with it, a legal case would likely ensue because it is thought by their legal advisers to be a certain violation of their rights.

    4/ Finally I make the pragmatic point that a bunch of religious organizations (not just one) being in court would be so damaging to the Government that I expect some compromise/back-down will occur that does more that the financial accounting tricks that have been proposed by the Administration hitherto. This is my key point, it is a prediction based on my argument, I am happy to wait and see if I am proved right or wrong in practice.

    It seems that Mike LaBossiere’s response to my post on March 22, 2012 at 11:33 am., gets the point I have been trying to make.

    And for the record I think Keddaw’s response March 23, 2012 at 5:32 is a rational and workable one.

    I have to say I think you are being unnecessarily argumentative with me.

  36. Well, you can make personal complaint if you like. But my point stands that, for example, I never claimed that any “expert” felt subjective uncertainty. Rather, I acknowledged the point that (aspects of) the constitutionality of the law might be uncertain, e.g. in the sense that there could be reasons to think that a court could decide some points either way. If anything, I was making a concession to you, rather than insisting that the law simply is constitutional. It wasn’t very responsive of you to come back by saying that your “experts” don’t feel uncertain. Again, I’ve conceded your point throughout that problems with forcing conscience can provide a reason for exemptions/accomodations (while insisting that these problems are not all equally severe and tha there can be countervailing considerations.

    The claim about being excessively argumentative can cut both ways. And in any event, I’ve actually been quite conciliatory towards you on this thread. I’ve merely had problems disentangling what you are actually arguing, given the ways you use your terms.

  37. Russell – I was just pointing out your errors and unfairness in your reading of my comments. If this is not welcome, or you simply can not see that, then it.s best for us to drop the point perhaps and move on.

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