The current debate on contraception reveals some confusion between people as to the meaning of “rights” and “freedom.” The following is meant to try to clarify the debate.
At issue is the current health care law which requires all employers to provide insurance, and all insurers to cover contraception. For some people this is a good idea because it protects the “right” to obtain contraception and the “freedom” to use contraception.
However, this is not the traditional meaning of the terms “right” and “freedom.” The “rights” enumerated in our Constitution are not rights to have something provided to you – they are guarantees of protection from government, ensuring that government regulation will not prevent you engaging in that activity. In the 1965 case of Griswold v. Connecticut, the U.S. Supreme Court recognized a right of this type (sometimes called a “negative right”) by prohibiting governments from making some birth control methods illegal. Although there is no explicit reference to contraception in the Constitution, the Supreme Court found the right to be implied by a number of other “negative rights” in the Constitution, which the Court construed to create a more general “right of privacy.”
The creation (or recognition, depending on your point of view) of such a “negative right” does not imply a “positive right” to have contraception provided, either by the taxpayer, the employer, or the insurance company. To be sure, many “positive rights” have been created through the insurance law – preventing insurance carriers from denying coverage for certain essential emergency services. However, mandatory coverage generally has not been extended to anything of a medical nature a person might want.
One of the problems with creation of a “positive right” is that it also creates an obligation on the part of someone else to provide it. Some object to a “positive right” to contraception because the people who would have to provide it, the insurance companies and the employers that have to fund them, may have religious or other objections to providing contraceptives.
Under current Supreme Court interpretation, the Constitution probably does not protect any freedom of religion right not to provide contraception. This is because, subject to certain exceptions, the Supreme Court has held that the First Amendment protection of religious liberty does not excuse compliance with “generally applicable law” which does not reference religion. Nevertheless, the religious liberty interest is deemed by some to be worth protecting, even if not required by current Constitutional interpretation.
The foregoing is probably not going to persuade anyone to change their minds on the current contraception debate. However, both sides should recognize that the other side’s position is supported by reason and merit, and neither side’s position is mandated by the Constitution.
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