No, Jon Stewart, Opting Out of Health-Care Mandates Won't Destroy Society

Chaos won't ensue if employers can act on conscientious objections -- in fact, they shouldn't be providing employees' insurance in the first place.

Jon Stewart thinks "chaos" would ensue if employers with a moral objection to birth control were exempted from the federal requirement to provide contraceptive insurance coverage to their employees. Watch his commentary, which comes near the end of the clip above, or read this transcript:

BOB SCHEIFFER: Senator Blunt from Missouri, one of your Republican colleagues, he wants a law that would allow anyone who has a moral objection to this to not have to pay for birth control pills. Would you be willing to push that in the Senate?

MITCH MCCONNELL: Of course I'd be happy to support it, and intend to support it.

JON STEWART: Really? Because you know what that would be? Fucking chaos, you realize that, right? That's chaos. (mocking tone) All right, I'm a Christian scientist. I don't have to provide any health care. I don't believe in it. It's all up to your boss. I work for the new head football coach at the high school. I got my new health care plan, and it just says, 'Walk it off, you pussy!'

You can't just decide on your own. We're either in a society or we're not in a society.

His incredulity bespeaks a faulty memory -- and a lack of imagination.

Prior to the federal mandate that employers provide contraceptive care there was not, in fact, "fucking chaos," and Americans did regard themselves as living in a society. It's clear why people like Stewart value the universal provision of contraceptive care. But the conceit that the federal government must either mandate that some employers engage in behavior that violates their conscience or face chaos is alarmist nonsense. Before Obama's heath-care overhaul, there were 50 different approaches to insurance coverage mandates, many of which left employers alone and focused on what insurers had to cover. Pro-contraception activists argue that the old system -- which governed a non-chaotic society -- did an inadequate job affording access to contraception.

I think they're right.

But folks who want to expand access should acknowledge that there are lots of ways to do it, and that it can be accomplished without forcing employers to do anything that they don't want to do.

This insight applies not just to birth control, but to health care generally.

The U.S. could make it much easier for individuals to purchase coverage apart from their employers. The employer-based system is, after all, a creation of government and unusual in the world. Contraception could also be separated from the health-insurance system and subsidized. As an advocate of greater access, I'd favor eliminating the need to get a prescription for birth control. Let people consult a pharmacist and buy it over the counter (a system within which all birth control, or birth control purchased by poor women, could then be subsidized).

Implicit in Stewart's rhetoric about all of us needing to live together is the notion that subsidized contraception for all is broadly popular, and a few conscientious objectors shouldn't be permitted to stand in the way of implementing that consensus. If that narrative is correct, there should be no problem passing a general law to subsidize contraception separate from the health-insurance system. What I suspect, however, is that while there is near-consensus that contraception is a good thing, a Congressional majority couldn't be found to declare it a "right" or a good that government should subsidize for everyone or that employers should be forced to provide. For that reason, the contraception mandate was introduced indirectly. The Affordable Care Act gave bureaucrats the ability to define what constitutes "preventative care." The bureaucrats decided birth control counts; therefore employers must include it when they offer insurance.

Isn't it possible that -- regardless of the merits -- making this judgment via executive branch rule-making rather than the legislative process is itself destructive of our ability to live together in a gigantic, pluralistic country?

Say that a conscience clause is layered onto the present system.

Any chaos that results isn't inherent to accommodating conscientious objections in a diverse society, as Stewart implies. The core problem is that inserting employers between health insurers and individuals created an unnecessary tension between the provision of certain goods and the consciences and preferences of employers. I'm enough of a pragmatist to concede that conscientious objections can't always be accommodated -- that overly broad opt-out provisions would cause chaos in certain instances. But provision of contraception isn't one of them. What the present controversy shows more than anything else is that the employer-based system should be scrapped. Until it is, we'll be needlessly compelling private actors to do things to which they object, even as the unemployed are effectively frozen out of the system.