The Corner

In the HHS Mandate Cases, There Are No ‘Competing Liberties’

I’m grateful that Kathryn keeps highlighting the principled plaintiffs challenging the HHS abortion-pill mandate before the Supreme Court. As the argument approaches, mainstream journalists will speak of the case in terms of “competing rights” or “competing liberties.” On one side are the business owners asserting a religious-liberty right not to purchase an objectionable product, while on the other side are the employees seeking to exercise their right to . . . what, exactly? 

Simply put, there are no true “competing rights” in this case. There is the right to religious freedom against a naked exercise of government power.

In a 2012 post, I put it like this:

Pop quiz: Name the legal sources of the key “rights” in play in the HHS controversy. Religious employers are asserting rights of conscience and free exercise of religion grounded in the First Amendment, arguably the single-most important constitutional provision protecting individual liberty from state power. Competing against this 200-year-old foundational legal principle is . . . an executive branch regulation (not even a statute) establishing a “right” that has never before existed in the history of the Republic — a “right to contraception coverage at no additional cost” (to quote a recent DNC video).

Statists often redefine government giveaways and mandates as “rights.” Thus enshrined in the language of rights, legal battles are fought as if the citizen and the state are on the same plane, with diminishing legal advantages given to the citizen. Desires (What do we want? Free abortifacients! When do we want them? Now!) become entitlements, and entitlements swallow individuals — by requiring their liberty and property in ever-greater measure.

I do not have a right to the fruits of another man’s labor. I do not have a right to another man’s liberty. Yet we teach our citizens that they can demand both — and that they should be outraged when the individual objects.

Competing liberties? No, certainly not. The mandate cases represent instead the age-old competition between liberty and tyranny.

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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