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).
And this is even a debate?
Sadly it is — largely because our ever-expanding welfare state inevitably leads to an ever-shrinking Constitution. After all, when the state has lofty goals for establishing “social justice” and micro-managing citizens’ health, individual liberty is an annoying impediment. “Rights” language is ubiquitous in our culture. It’s not enough to state a desire for a particular outcome (and I can certainly understand why anyone would want access to “free” drugs — contraceptive or otherwise), but now desires are rephrased as “rights.” And once rephrased, the debate changes. Serious-looking scholars start discussing “competing interests” and “balancing tests,” while citizens who (understandably) don’t study case law grow confused.
All sides have grown quite adept at using rights language to describe their desires. I’m reminded of the quote in the Incredibles, “When everyone is super, no one will be.” When everything is a right . . . nothing is.