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Natural Allies, False Analogies, and the Contraception Mandate



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I’ve been trying to find respectable constitutional defenses of the contraception mandate — arguments that take the potential infringement on religious liberty seriously, rather than merely laughing at it as most of the mandate’s proponents do. Jewish perspectives have been particularly honest and forthright in this regard. Brandeis University history professor Jonathan Sarna has such a piece up at Jewish Daily Forward, ”Constitutional Dilemma on Birth Control: Ignoring the Rights of Employees Violates Long-Held Tenets.” The piece suggests (as does Rabbi Daniel Brenner’s, which I wrote about yesterday) that we have lots of natural allies, if we can only get them to follow the constitutional question to its conclusion.  

Sarna argues:

The guarantee of religious liberty, after all, applies not only to religious organizations, but also to individual citizens. However much Catholic institutions may invoke religious liberty when they deny those they employ access to contraception, it is critical to remember that from the perspective of those employees, the denial reeks of religious coercion.

The analogy to “forcing kosher delis to sell ham,” put forward by Bishop William Lori, exemplifies the way the problem is misunderstood. In America (unlike in Israel), people have the right to choose whether they want to sell ham and whether they want to consume it; neither option is proscribed. We all might agree that kosher delis should not be coerced into selling ham, but hopefully we would also all agree that a deli’s employees and customers should not be penalized for choosing to consume it.

Sarna is demonstrably skipping one crucial logical step, namely that the problem is created in the first place by the federal government forcing employers to provide health insurance to their employees, or pay a tax penalty. The tax penalty applies to employees who seek health insurance in the individual market (and is therefore a tax penalty on the employment relationship). Obamacare, meanwhile, imposes a stiff mandate penalty directly on the employer. Employers and employees should be free to bargain for whatever compensation they like — that maximizes both efficiency and liberty — but the federal government makes that impossible through a scheme that limits the liberty of both the employer and the employee.  

You can see this in Sarna’s discussion of the “forcing kosher delis to sell ham” hypothetical. Of course a kosher deli’s employees should have the right to eat whatever they want. But in order to make that hypothetical truly analogous, you would have to imagine that the federal government first requires that delis directly provide all their employees’ food , or pay a tax penalty, so that everyone is forced into a system of employer-provided food, and then you require the deli to provide ham. Once you construct the kosher-deli hypothetical the right way, it becomes obvious that the federal government has severely restrict the liberty of both the employer and their employees.  

Sarna implicitly recognizes this himself, when he implies that the current system is “coercive” and that employees should be allowed to purchase their own insurance without the intervention of the employer.  

Is there any way of satisfying both the religious strictures of the church and the religious predilections of its employees? If, as in most western countries, the burden of acquiring health care were placed upon individuals rather than employers being required to provide it, then everyone could choose for himself or herself whether to have a plan with contraceptive benefits. Those with other strong beliefs about health care (such as Christian Scientists) could similarly select plans that accord with their faith. Nobody would be coerced, and everybody could purchase the plan that he or she wants.

Exactly. That’s why the federal government should get out of the business of interfering in the health-care market altogether. 

— Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation. 



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