The Contraception Controversy Was Never a Civil Rights Issue

Even if access to birth control is a core liberty, it need not be secured via employers and health insurance. And the Obama compromise proves it.
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Is health insurance that includes subsidized birth control pills a basic right owed to every American? The Daily Dish's Zach Beauchamp thinks so. "Birth control is for 98% of women the principal means of protecting a right central to their own liberty - the right to choose when to create a family," he writes. "For these women, not having access to birth control renders a crucially important right meaningless. Full insurance coverage is a critical part of the picture. Birth control is an expensive product - $81 a month is considered a steal with no contribution from your insurance, but that number still prices out many women. Even insurance plans that have co-pays can be prohibitively pricey. Cheaper alternatives like condoms have significant failure rates."

This kind of thinking was everywhere in the debate over whether nonprofits affiliated with the Catholic Church or other religious institutions should be required to provide employees with health insurance that includes birth control coverage (or else stop employing non-Catholics in universities and hospitals order to qualify for an exemption given to faith-based organizations that exclusively employ coreligionists). Wendy Kaminer, for example, suggests that civil rights are implicated in the debate:

As government workers are laid off and government programs shrink, the public role of private, tax-exempt non-profits expands. The stronger their right to dispense public funds and deliver public services according to sectarian religious dictates, the weaker our rights to a non-sectarian public sphere. It's a zero-sum game... What if belief in segregation were an article of faith, a matter of conscience, for some? (Some clergymen once defended slavery.) I'm not comparing opposition to birth control with racism, much less slavery. I'm simply pointing out that religious beliefs can, and often do, conflict with civil society and individual rights.

Would we tolerate a religious right to refuse treatment or accommodation on the basis of race as readily as we tolerate a religious right to refuse reproductive health care? Of course not. Your right to act on your religious beliefs is not absolute; it's weighed against the rights that your actions would deny to others. Today, and perhaps for the foreseeable future, claims of religious freedom tend to outweigh claims of reproductive freedom. But that is a consequence of history, politics, and culture and is subject to change. The balance of power is not divinely ordained.

Where these arguments failed was in their unduly narrow view of how access to contraception can be secured. Even if birth control is a civil right -- a controversial proposition -- is employer provided health insurance a prerequisite for enjoying it?

I don't see why that has to be the case.

There is broad agreement that America's system of providing health care via employers is outdated and in need of reform. There are all sorts of ways to transition away from the status quo -- a single payer system, a public option, extending the tax credit that employers get when purchasing health care to individuals. And however health insurance is obtained, the inclusion of contraception is strange. Don't misunderstand my beliefs. I think it is good public policy and fiscally prudent for the government to buy birth control for people too poor to afford it on their own. But let's not pretend it's well-suited to insurance. It's a predictable expense (like many others needlessly bundled but easily separable from health insurance), not a risk to hedge against by entering into a risk pool with a bunch of people not knowing who'll need to file a claim.

To confront these facts is to acknowledge that forcing Catholic Church affiliated institutions to provide "insurance" covering birth control was not the only way to go even if you think birth control is a civil right. Public policy could be arranged so that employers played no role in health insurance. Or it could be arranged so that birth control wasn't a mandated part of health care plans -- folks could buy it out of pocket like Advil rather than paying higher premiums in exchange for having it subsidized; folks too poor to afford birth control could get a subsidy covering their costs.

In fact, the Obama Administration demonstrated the truth of this point in the compromise it reached on Friday:

The White House will change its policy requiring employers to offer health insurance coverage to their employees that covers birth control at no cost. Previously, religiously affiliated employers other than churches--such as Catholic universities and hospitals--would have been required to offer the insurance to their employees. Now, according to senior White House officials, if a religious employer has a religious objection to providing birth control coverage, insurance companies will be required to offer the insurance featuring free birth control directly to the employees.

Even if you think birth control is a civil right, it wasn't ever threatened in the case of the Catholic Church-affiliated nonprofits versus the Obama Administration. What was threatened was the progressive desire to expand birth control access and subsidies via the specific policy mechanism it preferred for political reasons. You'd think, given the rhetoric of Obama Administration supporters, that a broad consensus supports their position on birth control, and only the qualms of a small number of orthodox Catholics were standing in the way of implementing it (in fact, only a small majority of Americans, 55 percent, favors requiring employers to provide health insurance that includes contraception). And no clear majority supports Beauchamp's notion that if someone is too poor to buy birth control pills, their civil rights are violated unless their employer chips in.

A straightforward bill to subsidize birth control for the poor might not pass Congress (even though I would support it). In order to avoid taking their chances on legislation of that kind, the Obama Administration pursued the path of least resistance: order employers to add this to their plans, even if doing so violates their conscience. This approach permitted them to hide the cost of providing birth control by bundling it into insurance premiums, mask the nature of who is being subsidized by whom, and build political support by offering a universal subsidy rather than one targeted at the poor.

What today's compromise showed is that it there was never a need to choose between religious and contraceptive freedom. What was actually at odds was religious freedom and the ability of progressives to advance contraceptive freedom through the means they found most expedient. There were always lots of different approaches that would achieve the same ends. If the Obama Administration and its progressive allies were less casual about coercing people, they'd have discovered the current compromise -- which they deserve credit for adopting -- a lot sooner.

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