Is There a “Right” to Birth Control?

The Supreme Court heard oral arguments on Tuesday from opposing legal counsel on the HHS contraception mandate cases. The media consensus appears to be that the justices were hard on the mandate and appear likely to issue a narrow ruling exempting “closely-held” corporations, which both of the plaintiffs are, while leaving open the question of whether or not publicly-traded corporations have First Amendment rights. The distinction is relevant since closely-held corporations are directly operated by their owners and are fairly limited in the number of shareholders they typically have, while public corporations have hundreds or thousands of shareholders. The smaller the group of ultimate decision-makers, the stronger the case that a corporation can in fact exercise religion.

Of course conservative Catholics and Protestants, along with other members of our society that value natural law morality and individual liberty, are hoping that the court rules in favor of Hobby Lobby and Conestoga Wood Specialties. A victory on First Amendment grounds would certainly allay widespread concerns that religious liberty in the United States is at death’s door. Elane Photography’s case, which may also be heard by the Supreme Court this year, would certainly benefit from a Supreme Court ruling establishing the religious rights of businesses. There would be cause for relaxed breathing, if not jubilation, should a tide of court rulings firmly put the brakes on the “progressive” juggernaut smashing its way through traditional America via the lower courts—especially after the Supreme Court’s ruling on DOMA and California’s Proposition 8 (though in fairness, the ruling was not devastating for social conservatism).

My celebration will be muted and limited, however, because a legal victory will not address the underlying philosophical and cultural divide that brought this case before the court to begin with. Contrary to what some may believe, law is not the foundation upon which society rests; it is rather the adhesive we use to patch up broken pieces of society. The more laws, precedents, mandates, rulings and decisions we require to defend our basic interests and assert our rights, the greater indication we have of a society that is almost literally tearing itself apart.

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One can look to many flashpoints in the conflict between conservative America and modern liberal America, but the most severe clash arguably takes place over the meaning and nature of “rights.” While illiberal Catholics believe that the logic of American liberalism makes things like contraception mandates inevitable, those of us more sympathetic to the tradition of classical liberalism know that we are seeing something radically new develop on the cultural left that may borrow the language of liberalism but betrays its essence. In the Lockean-Jeffersonian tradition of the United States, natural rights are inalienable and God-given; they are also corollaries to natural laws, duties and obligations. The Lockean right to private property exists because of the natural laws obligating the preservation of one’s self and one’s household. The rights of which Jefferson wrote were “self-evident” and God-given, requiring no council of judges to determine. Government in both accounts is called into existence for the purpose of defending rights that already exist in nature, and not for the purpose of creating them. Thus there is no natural and inalienable right to contraception (or abortion, or euthanasia, or gay marriage for that matter). The people through their political assemblies may create laws allowing for any of these practices, but it does not follow that they have created anything more than a temporary legal right to such things. A new political assembly could rescind such laws without any injury to a fundamental right recognized in our founding documents and philosophical tradition. This, among others, is a distinction between natural and human laws.

Turning to the present, it seems obvious that most Catholics accept that the United States cannot and will not outlaw contraception. While we would not proclaim or defend a “right” to contraception, we would not expect the federal or even state governments to restrict or abolish its production, sale or use. Such a demand, no matter how morally justifiable on the principles of traditional natural law, would be politically irrational and untenable. As far as the vast majority of faithful Catholics are concerned, legal contraception is a fact of modern life, accepted by the vast majority of Protestants and of course our growing secular component (I’m not opposed to intellectually challenging this status quo, of course).  If Americans want to purchase and use birth control with their own money, so be it.

This was not enough for the American left. Though it is an absolute fact that no woman in the United States is, or would be in the absence of the mandate, legally prohibited from purchasing contraception, the left is ceaseless in its deceptive rhetoric which implies the opposite. They speak of the Supreme Court potentially abolishing “the right to contraception”; Obama himself has repeatedly framed the issue as one of employers wanting to “control” their employees. How can one respond to and engage with lies and/or misconceptions of this magnitude? Justice Scalia’s question to Theodore Olson during the oral arguments against DOMA/Prop.8 applies here: when did women paying for their own birth control become a violation of their Constitutional or natural rights?

What the administration really wants is what the collectivists on the left have always wanted: total parity in income between male and female employees, a goal that cannot be achieved in their view without birth control. It is an implicit acknowledgment that the “wage gap” between men and women is not the result of a mythical patriarchy, but rather due to the biological differences between men and women that often cause the latter to work less and therefore earn significantly less than men. Conversely, the less often women are suddenly pregnant, the more money they can earn. The government has taken this up as its compelling interest in its defense of the mandate (see p. 59 of the 10th Circuit’s ruling in favor of Hobby Lobby, for example)

It doesn’t take a scholar of American political thought to see that this collectivist agenda has nothing in common with the individualism inherent in classical liberalism’s take on natural law. If as illiberals might contend conservative Catholics are forced to use the language of individualism to defend themselves whether they like it or not, the modern left is equally compelled to use it to cloak its radically collectivist aims. Women’s liberation—along with racial identity politics—has never been about individual choice or freedom, which is irrelevant to a collectivist; it is about structuring society in such a way that statistical measures of success and achievement in all areas of life will be approximately equal among various groups. Any gap larger than the statistical margin of error between two groups such as men and women in any relevant area, such as income, is automatic evidence of institutional discrimination and oppression—and heaven and Earth must be moved until that gap is eliminated, even if it means the eradication of the individual’s right to free religious exercise, private property, and moral conscience. Call it what you will, but don’t call it “liberalism.”


  • Joe Hargrave

    Joe Hargrave is an adjunct professor of political science at Rio Salado Community College in Tempe, Arizona.

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