The Provision and Production of Contraceptive Care
Precis: Hobby Lobby should lose their case. Hanley is neither for nor against the birth control mandate. Moral arguments are more appropriate for issues of provision than issues of production, which are primarily a pragmatic issue.
Like Nob Akimoto, I’m exasperated by the discussion of the birth control mandate. But undoubtedly I’m exasperated for different reasons. Mostly, I’m exasperated by the failure to properly distinguish between provision and production when making moral arguments. That is, when I’m talking about production, people often assume I’m talking about provision. In the particular case, there seemed to be an assumption that I was against women having access to birth control, or that I was privileging Hobby Lobby’s moral claims over woman’s moral claims. And certainly nobody got the distinction between pragmatic and moral decision that I was making. Maybe that’s my fault, for not being clear enough, so I’ll make an attempt to clarify.
To begin, I think Hobby Lobby should lose their case. Others have made arguments about why a corporation doesn’t have religious freedom interests–I agree with them, so I don’t need to repeat those arguments here.
Also, I’m not against the birth control mandate. I’m not for it, either. I’m remarkably neutral. Because what I care about is that women have access to birth control, not about a specific means of gaining that access.
The heart of my argument here is about the distinction between provision and production of public services. This distinction I learned from 2009 Nobel Memorial Prize in Economic Sciences winner Elinor Ostrom. The words are used in a technical sense, which may or may not be well-reflected in their dictionary definitions. The specific phrasing of the definitions here is mine, not Ostrom’s, so if they’re not perfectly clear, blame me (but please let’s focus on the concepts, and not get bogged down in the phrasing).
- Provide: To arrange for the availability of some good or service.
- Produce: To actively create or deliver the good or service.
For example, through financial aid, the federal government helps to provide higher education to students, while through receipt of that aid and using it to pay me, my private college produces higher education.
Provision and production can be combined in the same entity. State governments, through legislation, taxation, and public universities, both provide and produce higher education. But they can be divided, as with my private college receiving federal financial aid or having contractors build roads or collect household trash.
Whether to provide something is not always a moral question, but it very often is. But even if provision is morally required, that doesn’t mean any particular means of production is morally required.
Of course the means of production are not entirely separate from moral considerations. If we produced publicly provided higher education by the enslavement of college professors, we’d find that means morally unacceptable unless there were no other morally-less-dubious means and we decided that students’ right to higher education trumped professor’s right for freedom. My claim is simply that given a set of means that are all morally acceptable (or if we want to be more rigorous, equally morally acceptable), the choice of any one over the others is based on pragmatic, not moral, considerations.
So what about the mandate of requiring employers to pay for insurance contraception? The provision of access to contraceptives,* let us stipulate, is a moral question. Let us further stipulate that it is a moral requirement.** Those stipulations imply nothing about the means we choose. Therefore, the contraceptives mandate can’t be morally necessary as a consequence of the moral necessity of provision, but can only be morally necessary if all other means of producing access to contraceptives care are morally unacceptable, or at least morally more problematic. Even if there is only an equally good alternative means of producing contraceptive care, the mandate cannot be morally required.
I think there are alternative means of producing contraceptive care which are at least arguably equally morally acceptable. National health insurance is one. Another would be for government to negotiate with pharmaceutical firms to make contraceptives available at no cost (or with a nominal co-pay equal to what you might pay with insurance), and if necessary, we can include no-cost doctors visits as well. Another is to increase the minimum wage sufficiently to cover the cost of contraceptive care.
Curiously, one of these alternatives–national health insurance–is favored by the very people who argue that the mandate is a moral necessity, even thought that invalidates that claim. The other ideas may not receive the same support (or in the case of a minimum wage increase, will be supported for a different reason). That’s ok. But the real arguments against them are going to be pragmatic, not moral. (I just put a challenge out there, didn’t I? Surely someone’s going to take it up.) And in the same way, the argument for the mandate is also a pragmatic argument, not a moral one.
And that’s the sum of my argument. The mandate is not a moral necessity. It could be the most pragmatic means of producing access to contraceptive care, of course, at least for the time being.
This is a rarefied argument, no? And rarefied arguments rarely fare well in public debates, at least on issues about which people have deep commitments. But to argue that the contraceptives mandate is a moral necessity is, I think, to confuse provision and production, and to misapply moral reasoning.
* It’s probably better to talk about reproductive health services, rather than just contraceptives. But the specific Hobby Lobby case is about paying for contraceptive coverage in insurance (I think, anyway), and focusing just on that allows for a tighter, more focused, argument. But everything said here is applicable to the broader set of services as well.
** If you disagree that publicly providing for contraceptives is a moral requirement, please allow it for the sake of building my argument.
[Image source: Wikimedia Commons]