March 15, 2013

The Birth Control Mandate

The recent government mandate for employers to cover the expense of employees’ contraceptives in their insurance plans is significant in two respects. Most of the media attention has centered on the religious freedom issue, but the mandate raises a second, equally important issue that has gone almost unnoticed. Quietly, over a series of laws of which the mandate is only the most recent, we are becoming acclimated to the idea that businesses can be made into public welfare institutions, subordinated to the authority of the Federal government. This is a significant transformation of the relationship between the individual, business, and the government.

Consider the model of government intervention in business that predominated through most of the last century. Institutions like the FDA, OSHA, and the EPA were all, in principle, dedicated to a single concern – that of safety. The FDA’s initial purpose was to make sure that the food and medications that reached the public were safe. OSHA’s purpose was to make sure that the workplace was safe. The EPA had the task of controlling pollution, making sure the environment was safe. None of these concerns are within the power of ordinary individuals to address themselves. Environmental issues are often even beyond the control of individual powerful corporations. While these regulatory institutions necessarily took an adversarial position toward business they were, unquestionably, formed for good purposes and did good things. They mitigated dangers against which individuals were truly powerless.

The mandate for unemployment compensation was, perhaps, the beginning of the deviation from government intervention on the basis of safety alone. Making an employer pay into an unemployment insurance fund is, essentially, making employers protect their employees from the vicissitudes of the economy for a specified term. That is only a safety issue if you interpret the term “safety” very broadly indeed. Unemployment is a problem which, in theory at least, individuals can defend themselves against through savings. While there is little doubt that unemployment benefits reduce hardship, the mandate did constitute an expansion of the scope of government’s intervention in the economy. Unemployment insurance may be a good thing in itself, but it set a precedent for other kinds of interventions that have not been as benign.

The provision in Obamacare which prohibits insurance companies from denying coverage of preexisting conditions (set to take full effect in 2014) abrogates the very mechanism by which insurance companies operate. An insurance policy, at its core, is just a very well researched wager. The policy holder bets on getting sick enough to need more money than he or she will end up paying to maintain the policy. The insurance company bets the policy holder will be relatively healthy, and has compiled enough predictive data to win most of the bets. When the system works correctly, the insurance company makes a profit and the policy holder minimizes the severity of the worst possible outcome. All the participants in the system win. Not everyone gets covered, so the model is flawed from the perspective of making paid medical treatment universal – but that is not what private insurance is designed to do. Forcing an insurance company to cover people who are already sick is like making a gambler place a bet on a horse that isn’t even in the race. It is mandated charity, or, to look at it another way, it is a narrowly targeted and irregular tax.1

While health insurance was, at least, a problem everybody recognized, affordable contraception was a bolt from the blue. It was not a problem anyone was wrangling with because, frankly, it is not a real problem. Contraceptives have long been available at no cost to the user from Planned Parenthood and similar organizations. They are not particularly expensive in any case. Anyone who wants them can get them. The only vague inkling that contraception was being scrutinized as a public policy issue came in a question put to Mitt Romney by George Stephanopoulos during a Republican presidential debate in late 2011. “Governor Romney, do you believe that states have the right to ban contraception? Or is that trumped by a constitutional right to privacy?” Every candidate on the stage was stunned by this absolute non sequitur. It was shrugged off by Romney and the others as a ridiculous question and quickly forgotten. The question was probably intended to produce a useful gaff, and to that extent it failed. Nevertheless, a few months later the mandate was unveiled, Sandra Fluke appeared before congress with her carefully crafted testimony, and the “Republican war on women” was born. The correct people were offended and the resulting narrative contributed to the president’s re-election victory. That such political theater was foisted on the public is contemptible. That a significant number of people found it credible is a tragedy.

Buried in the noise of this Machiavellian maneuver were, as I’ve said, two significant policy agendas. The attack on the Catholic Church was the more obvious of the two, and garnered most of both the media and public interest.

While I personally do not believe any form of theism is epistemically tenable, I am nonetheless a defender of religious liberty and religious tolerance. Our republic was founded on these principles and has, in the main, benefitted by our adherence to them. When government intrudes so deeply into the life of the individual that it begins to require a particular worldview, regardless of what that worldview happens to be, it has overstepped its constitutional limitations. Conflicts with religious liberty have certainly occurred in our history, but they have tended to focus on obvious life-or-death issues. For example, Jehovah’s Witnesses vehemently oppose receiving blood or blood products on scriptural grounds. While we accept the right of adult Jehovah’s Witnesses to do this, we do not accept their right to deny blood products to their children in life-or-death situations. While this is an infringement of religious liberty, it is an ethically justifiable one. The birth control mandate is not an issue of that character. No one is denying anyone the right to use birth control. Churches might discourage the practice openly, and it’s conceivable that a business might somehow discourage the practice tacitly, but no adult in the United States is going to actually be denied access to birth control by their church or their employer. Buying contraceptives is the prerogative of any adult citizen. Forcing one citizen to buy them for another is unjustified, and, I believe, deliberately malicious. To use the case above as an analogy, it would be like forcing a Jehovah’s Witness mother to administer blood to her child personally. It is simply an abuse of power, not to save life, but to force adherence to a particular ideology.

I, myself, believe that widespread contraception is a good thing. While I respect other views, I think that slowing and reversing world population growth is a laudable goal. The world has almost certainly exceeded its sustainable carrying capacity. There are too many of us. Most of the world’s problems stem from this simple fact. If we do not decrease the population ourselves, nature will eventually do it for us. Malthus has never been refuted. That being said, I do not believe the ends justify the means. While we may, perhaps, only understand society in terms of aggregates, when we treat individual human beings as mere parts of a collective we lose touch with our own humanity. In the end, only the individual can really matter. Groups have neither feelings nor aspirations – except for those embodied in individual, flesh-and-blood human beings. Unnecessarily diminishing the freedom of the religious is not an attack on the religious alone, but is also an attack on the principle of individualism itself.

The second agenda, that of rendering business subservient to the state, goes hand-in-hand with the first. Free enterprise, in all its strengths and weaknesses, is an expression of the individual capacity to strive and prosper. If money is power, functioning free markets are the diffusion of that power into a comparatively large number of hands. If this is not conducive to perfect equality, it is at least more conducive to equality than the centralization of economic and social authority in the hands of the state. I may opt to neither work for nor to buy from an objectionable business, but I may not decline to pay my taxes nor ignore objectionable laws. In the last hundred years, government has gone from being a relatively benign regulator of business to being its ultimate overlord. Or, in cases like the banks of the Federal Reserve System, government and private enterprise have already become one and the same. All of our resources, from the poorest of us to the richest, can now be bent to the will of quite a small group of planners – ideologically driven people who view the nation and everything in it as theirs to redirect or redistribute. Odd that we, as a people, should give up so much freedom with so little complaint – and call it progress.


1 The same thing has been happening with hospitals for many years, insofar as they are required to provide a considerable level of care whether the patient has any means of paying or not. This is obviously a related issue, but it is complicated by the fact that hospitals, prior to the last half century or so, were largely run as charities. It is an open question whether or not the charity model of healthcare is or isn’t better for society, but at the point at which healthcare isn’t organized that way, forcing it back into the charity role is a little peculiar. While I’m dubious about the ethics of running hospitals as profit centers, I can’t imagine many other businesses being forced to give their products or services away for the sake of the public good. Restaurants are not required by law to feed the hungry, nor are clothing stores required to clothe the threadbare.

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