The Tyranny of 'Reproductive Freedom'

Jacob Sullum
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Posted: May 10, 2017 12:01 AM
The Tyranny of 'Reproductive Freedom'
President Trump says an executive order he signed last Thursday protects religious freedom, while his critics say it undermines reproductive freedom. If both freedoms are understood as rights that must be respected, someone has to be wrong here, and for once, it isn't Trump.

The executive order tells federal officials to "consider issuing amended regulations" addressing "conscience-based objections" to an Obamacare mandate requiring employers to provide health coverage that includes all FDA-approved contraceptives. For religious reasons, some employers do not want to be implicated in subsidizing, encouraging, facilitating or condoning either contraception in general or the methods they view as tantamount to abortion.

Because of such concerns, the Obama administration exempted churches and related organizations involved in exclusively religious activity from the contraceptive mandate. But any religious organization that offers social services or engages in other nonsectarian activities has to notify its insurer if it objects to the contraception requirement, at which point the insurer is supposed to provide the coverage independently, at no additional cost to the employer or employee.

For groups such as Little Sisters of the Poor, a Roman Catholic order that runs homes for low-income elderly people, that workaround is unacceptable, because they believe the form they must send to insurers makes them complicit in sin. Trump's order is largely aimed at addressing that complaint.

The order could also help religious business owners. In the 2014 case Burwell v. Hobby Lobby, the Supreme Court said the Religious Freedom Restoration Act requires the government to accommodate the objections of "closely held for-profit corporations" whose owners balk at the contraceptive mandate for religious reasons.

What might these religious accommodations look like? Last year, a unanimous Supreme Court suggested one likely possibility in response to the legal challenges brought by Little Sisters of the Poor and other faith-based organizations.

Instead of forcing employers to express their religious objections in forms filed with their insurers or the government, the Court proposed, why not treat their purchase of health plans that do not include contraceptives as the signal for insurers to provide that coverage separately? The Court, while sending the cases back to the appeals courts for further consideration, said such an approach, which both the plaintiffs and the government agreed was feasible, "accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans 'receive full and equal health coverage, including contraceptive coverage.'"

If Trump's order results in a solution along these lines, it will have no perceptible impact on women's contraceptive coverage, even if it includes businesses as well as religious organizations. But you could be forgiven for thinking otherwise if you saw the alarmist statements issued by the order's critics.

"President Trump's executive order discriminates against women and robs them of essential preventive care," claimed Nancy Northup, president of the Center for Reproductive Rights. "Without health coverage of contraception under the ACA, countless women will lose their basic right to prevent pregnancy and plan when they have children."

Donna Lieberman, executive director of the New York Civil Liberties Union, warned that the executive order will "encourage employers to use religion as a pretext to deny women the care they need." Amanda Klasing, a researcher at Human Rights Watch, said "this order will take away many women's access to affordable family planning options."

Such comments not only grossly exaggerate the practical consequences of accommodating religious objections to the contraceptive mandate; they fundamentally misconstrue the interests at stake, erroneously equating freedom from coercion with a claim on other people's resources.

The "basic right to prevent pregnancy" does not imply a right to free contraception any more than the right to freedom of speech implies a right to free internet service or the right to armed self-defense implies a right to free guns. A system in which you can force other people to subsidize your choices, even when it means violating their religious convictions, looks a lot more like tyranny than freedom.