Choice, not Chance

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235 Responses

  1. Avatar Saul Degraw says:

    Great essay, Zic.

    It is interesting to note that the Conservative Right has opposed Griswald and the expanding cases since they came out. Just like so much of the modern conservative movement seems to want to unravel any civil liberty advancement that came out of the Warren Court. I think it is the Warren Court that functioned as the catalyst for the modern Far Right movement. Impeach Earl Warren was not an uncommon expression during the 1950s and 60s.

    The argument against Griswold is that there is no explicit right to privacy in the Constitution and conservative jurists have always been skeptical of substantive due process analysis or of have expansive 14th Amendment analysis. They would argue that if you want a right of privacy, you need to add one to the Constitution. My general response to this is that the 4th Amendment is basically a right to privacy as are many other Amendments if only implicitly.

    I think a large part of conservative resistance to the Warren Court is that it removed or substantially curtailed the moral aspect of traditional Police State powers. Now what is interesting about the liberal and conservative divide in the US is how we tend to focus on different sections of the Police powers (health, welfare, safety, morality) and the differences in what morality means. Liberals tend to use morality as a way of talking about the welfare state.Report

    • Avatar Road Scholar in reply to Saul Degraw says:

      The meanings of words shift over time. My understanding is that in the 18th century you would announce (should you feel the need) your intention to visit the outhouse by saying you needed some privacy. Hence, the slang term “privy” for a restroom. (We can never really bring ourselves to call that room for what it really is, huh? I mean, have you ever taken a nap in one? Unless you were really drunk anyway?)

      So the bottom line is that for the framers of the constitution in the 18th century to have written into the Constitution a right to “privacy” would have been to literally guarantee the right to take a crap or perhaps to build an outhouse. Sorta silly, huh?

      On the other hand, if one were to search for a word that most neatly encapsulates the intent of the 4th amendment in modern vernacular, I think you would be hard-pressed to find a better word than privacy. I find that particular argument from conservatives to be disingenuous on steroids.Report

      • I suspect that conservatives would be just fine with privacy as a general concept had it not been used as a foundation for various rights of sexual autonomy like contraception and abortion. The legal notion of a right to privacy received its most prominent early exposition in a law review article by Louis Brandeis. As far as I know, until the Griswold case, conservatives did not take particular exception to the idea that the Constitution protects the right of individual privacy as described in Brandeis’s article.Report

      • Avatar Dave in reply to Road Scholar says:

        @burt-likko

        The legal notion of a right to privacy received its most prominent early exposition in a law review article by Louis Brandeis. As far as I know, until the Griswold case, conservatives did not take particular exception to the idea that the Constitution protects the right of individual privacy as described in Brandeis’s article.

        I’d argue that it was implicit in Munn v Illinois. While the Supreme Court upheld a rate regulation on a certain kind of business, it said that such regulations applied to companies “affected by a public interest”. This public-private distinction was applied to state-level economic regulations on 14th Amendment grounds up until the Court eliminated it in the 1934 decision Nebbia v New York. Some of the freedom of contract cases also had an element of privacy to them and, of course, there were the decisions in Meyer v Nebraska and Pierce v Society of Sisters. No explicit right to privacy was recognized but at that time the court wasn’t in the business of identifying rights. It simply state exceeded its power.Report

      • Do you agree with me, @dave , that conservatives weren’t really all that opposed to the idea of privacy as a constitutional right until Griswold? I’d actually go a step further and suggest that the concept of a strict and narrow reading of the Constitution, grounded in the time-of-adoption meaning of the text, was not one identified with conservatism until right around then, either.Report

      • Avatar Dave in reply to Road Scholar says:

        @burt-likko

        Do you agree with me,@Dave, that conservatives weren’t really all that opposed to the idea of privacy as a constitutional right until Griswold?

        I agree. I don’t think it was an ever an issue.

        I’d actually go a step further and suggest that the concept of a strict and narrow reading of the Constitution, grounded in the time-of-adoption meaning of the text, was not one identified with conservatism until right around then, either.

        Yes, and that’s because right around then, not only did you have the Griswold decision but the Warren Court had really stepped up incorporating the Bill of Rights into the 14th Amendment and it’s equal protection jurisprudence was re-shaping the civil rights landscape.

        It was one thing to complain about the scope of the federal power post-Wickard v Fillburn but it really pushed conservatives over the edge when the Supreme Court began protecting rights against the actions of the state governments.

        The intellectual framework was already laid out by the time this happened. I think Charles Fairman’s work was one of the more commonly cited texts of that day. However, both his work and Raoul Berger’s work have come under intense criticism.Report

  2. Avatar Burt Likko says:

    I took the liberty of cleaning up what appeared to be alternating fonts, sizes, and font colors, and tightening up blank spaces, likely to have been the unintended relics of multiple edits on multiple computers, to present the post in the same sort of visual style common for these pages. All my changes were to formatting only save correction of a trivial misspelling.Report

  3. Avatar LeeEsq says:

    We should get a spirited debate about the nature of rights from this piece.Report

  4. Avatar Burt Likko says:

    My preferred outcome, given what we have for a political system, legal precedent, and statute would be for employees working for corporate objectors to be covered by the government and or insurance companies in a way that seems seamless to the employee; while corporate objectors pay for their objection with a tax penalty exactly as real, non-corporation people pay a tax penalty when they decline to purchase health insurance, thus offsetting the rent-seeking objectors are placing on everyone else.

    This seems like would be a line item on the enrollment for the individual employee. Such a line item could be an opt-in or an opt-out, and from there the benefits administrator would determine the employee’s preference and enroll her in some sort of a supplemental coverage program, funded with tax dollars, that would cover the contraception. Now, if those tax dollars funding the supplemental contraceptive coverage come from the tax penalties for providing incomplete coverage, isn’t that still an indirect means of nevertheless compelling the corporate objectors to pay for the very thing that they got the Supreme Court to rule they don’t have to pay for?Report

    • Avatar zic in reply to Burt Likko says:

      Yes. But it’s not different from a conscientious objector who, through dint of belief, cannot be conscripted into a combat role in time of war, but is not relieved of the obligation to pay taxes which support defense budgets.Report

      • Avatar Burt Likko in reply to zic says:

        Well, I think that’s fine, personally — but I’m pretty sure that five out of nine sitting Supreme Court Justices are not.Report

      • Avatar zic in reply to zic says:

        @burt-likko this is exactly the problem of understanding and empathy that led to the video you posted of Couric’s interview with Justice Ginsberg.

        Perhaps it’s time to stop appointing men to the court until the jurisprudence imbalance has been corrected? Personally, I think that would be equally offensive. But I have no problem suggesting that five justices were wrong, every bit as wrong as justices have been in the past with decisions like Dred Scott.Report

      • Avatar Burt Likko in reply to zic says:

        Hah. As to the all-women suggestion, Justice Ginsburg herself put it nicely — there’s lots of women she’d be unhappy to call her successor. Like men, women do not suffer from an unanimity of opinion on nearly anything, even contraception.Report

      • Avatar James K in reply to zic says:

        @zic

        It seems to me that the real problem here is the artificial and utterly unnecessary connection between employment and healthcare. Arguably this is a point both sides of the Hobby Lobby case should be able to agree on – if employers were not actively incentivised by policy to buy health insurance for their employees the Hobby Lobby case would never have existed.Report

  5. Avatar Damon says:

    That’s a good article Zic. Kudos for writing it. I object to almost nothing your wrote-no one should be beholden to another, nor controlled-save the “who pays”, because, frankly, no “right” can obligate someone else to pay for something another claims as a “right”. The state already has too much involvement in everyone’s lives. I see little value in inserting it into even more of our lives.Report

    • Avatar zic in reply to Damon says:

      Thank you, @damon

      But I think much of my point here is that women have a lot of tradition inserting itself into their rights, and from what I can see, it’s only the actions of states that give them access to those rights. Men, for instance, were given the right to vote simply due to being men. Women needed the state to take action to grant them this right. So I think you can see why I have some qualms about your stance; I cannot take for granted the things you can.Report

      • Avatar Damon in reply to zic says:

        @zic,

        Indeed, you are correct, but my point was rather narrow. Western society has made a lot of progress in terms of various oppressions, and that’s a good thing. But, let’s also be mindful that state action, by it’s very nature, is oppressive and violent. That’s not a servant I wish to engage very often. The blow back can be a bitch. Contrast that to many others who view the use of the state to achieve their desires as a first choice.Report

      • Avatar LeeEsq in reply to zic says:

        Not everybody agrees with the proposition that government or state action is by its nature oppressive and violence. What I think is that a state has a great capacity for good and evil acts. The greater the capacity of a state to act than the more good or evil it can be. A government that is capable of providing universal healthcare is also one that can really intrude into a person’s life. I think that many liberals and libertarians could agree with this framing. Where we disagree is that liberals do not believe that decreasing the government capacity to do good will necessarily decrease its capacity to do evil since many acts of state oppression and violence come from its police and judicial powers, which can exist in a limited government framework.Report

      • Avatar Stillwater in reply to zic says:

        Lee,

        I agree that gummint can do good as well as bad. I tend to think that the types of disputes we get into here at the OT revolve around a pretty complex calculus which none of us ever make explicit, and it’s this: liberals tend to think that the benefits of gummint outweight the costs and libertarians tend to think the opposite. At one extreme end of libertarianism you have the view that gummint is not and cannot be justified (Michael Huemer, for example) coupled with – or striding alongside of, anyway – the idea that gummint can be defined as a monopoly on the use of force. I’m not sure what the liberal extreme would be – maybe something to the effect that any gummint policy that passes formal muster is legitimate? (I know Jaybird will want to chime in with references to Stalin, of course.)

        But back to the calculus part… I think an objective appraisal of gummint would conclude that it does some good stuff and some bad stuff. My liberalism is based on the idea that on balance, government accords more good than bad. Damon’s libertarianism is based on the idea that gummint does more bad than good.

        I throw this out there since I think resolving these types of view in any sort of non-ideological way is pertnear impossible. I just don’t think any of us has the mental/intellectual/emotional/computative capacity to determine an answer to this issue in any definitive way.

        So … we resort to cheats. We extrapolate from one policy area to another. We generalize. We simplify. Either empirically or emotionally or partisanly. Whatever!

        For my part, I’m 100% on board with zic’s claim that without gummint intervention into some serious issues, women wouldn’t enjoy the options and opportunities that they currently do. In fact, as some folks already know, I think conservatism to a great extent is motivated by a desire to curtail the types of equalities zic consistently argues for. Libertarians who object do so for other reasons. At the end of the day, tho, when we try to make a judgment about the role gummint plays in all this, we’re just arguing for our own preconceptions. Granted, some people come into an issue with fewer priors and can make a legitimate claim to “dispassionate judgment”. But as we’ve been learning, quite often dispassionate judgment is just the expression of privilege, or High Intellectualism, or somesuch. In other words, a defeatable framework.

        For my part, tho, I’m still really down on all the a priori stuff. There’s carts, and there’s horses, and the a priori cart has no business leading anything.Report

      • Avatar LeeEsq in reply to zic says:

        @stillwater, Stalin is not a good choice for the liberal extreme because he was a Communist and not a liberal and your getting into debates on what is the difference between a modern liberal and the various types of socialism. The liberal extreme would probably somebody from the French paternalist school of government who simply accepts the idea that government should act as a very strong guiding force in society.

        I agree with you and zic that government intervention is necessary to carry out societal reforms in many instances. America would be a more traditional or conservative place with fewer opportunities for women or people of color without government intervention.Report

      • Avatar Damon in reply to zic says:

        @stillwater

        Given the number of humans “gov’t” has killed in the 20th century, I’m pretty sure, on balance, gov’t has caused more harm than good to humanity. What are we up to now, 100 million?Report

      • Avatar Jaybird in reply to zic says:

        Is Stalin a Communist again? Golly, how times change. I remember when it was risible to say that he was one.Report

      • Avatar James Hanley in reply to zic says:

        @damon

        Rummel now says a quarter billion.Report

      • Avatar Mike Schilling in reply to zic says:

        What party did people did people used to think he was General Secretary of?Report

      • Avatar Murali in reply to zic says:

        @mike-schilling
        Well, while the Chinese communist party has the word communist in its name, the Chinese government has stopped issuing quotas (or at least increasing them) and allows its people to keep their productive surplus instead of collectivising it. That seems distinctively un-communist to me. Also, wasn’t it the case that in communism the state was supposed to wither away? But that didn’t happen in Stalinist Russia.Report

      • Avatar Mike Schilling in reply to zic says:

        You have to distinguish Communist from communist.Report

    • Avatar greginak in reply to Damon says:

      Well a right to a fair trail can lead to all of us paying for public defenders for the accused.Report

    • Avatar LWA in reply to Damon says:

      And a right to contract enforcement and property protection obligates the rest of us to pay for courts and judges and police.Report

      • Avatar James Hanley in reply to LWA says:

        There’s an important distinction between “we’re all required to contribute to a common fund, which will pay for X for those who can’t afford them” and “you, by virtue of your relationship with the person who can’t afford X, are obligated to make X available to them.”

        It’s the difference between public funding for housing assistance and requiring you to provide or pay for a room for that person.

        Some libertarians pretend there is no such distinction. They’re wrong. Liberals who make the same pretense are no less wrong, and they’ve also played into the libertarians’ hands by agreeing that we can’t make such distinctions.Report

      • Avatar zic in reply to LWA says:

        The ironic thing with your argument here is that women pay for their HL insurance; it’s part of their employee compensation, and it’s HL doing the rent seeking, putting the cost on tax payers.Report

      • Avatar James Hanley in reply to LWA says:

        women pay for their HL insurance; it’s part of their employee compensation

        Really, do they pay for their wages, too?

        And the claim that “it’s part of their compensation” treats that as an “of course,” rather than what it really is, which is an attempt to make it true via law. Insurance as part of compensation is not inherent, nor then can any particular part of it be inherent. What we have, in our politics and in our law (including the HL case) is a negotiation about whether contraceptive care is in fact to be a part of compensation or not. To simply say that it “is” part of their compensation is to pretend that this isn’t a political/legal issue that is being negotiated.Report

      • Avatar Mike Schilling in reply to LWA says:

        @james-hanley

        The former being unworkable for the health insurance mandate, of course. Any employer could develop a genuine religious objection to covering anything expensive like cancer or heart attacks (“But we cover 100% of your yearly flu shot!”). It’s a path to single payer, I suppose.Report

      • Avatar LWA in reply to LWA says:

        @james-hanley
        I do understand your point, but would point to the way schools were funded by property taxes, on the theory that homeowners tended to be parents of school aged children.

        But lets look at this-
        “you, by virtue of your relationship with the person who can’t afford X, are obligated to make X available to them.”
        What is the argument against this? Why is this universally illegitimate?

        Why can’t we, in LiberalWorld, say that employers are mandated to provide transportation (public, of course) for their workers?Report

      • Avatar James Hanley in reply to LWA says:

        Schilling,
        I am on record as saying that single-payer was both more sensible and more clearly constitutional than ACA. And I am not bothered by the prospect of claims you lay out, both because it’s really reaching to assume there’d be lots of those types of claims and because I am willing to defend conscience rights very broadly.

        LWA,
        What’s the point of debating that. You already actually know what my position will be, I already actually know what your position will be. There’s no prospect of either of us saying anything new and informative, and no prospect of either of us winning over the other.Report

      • Avatar Will Truman in reply to LWA says:

        I still say “Everybody-on-the-exchanges” is far more likely (or less unlikely) than single-payer.

        (Well, between the exchanges and Medicare/Medicaid, some combination of both.)Report

      • Avatar Mike Schilling in reply to LWA says:

        it’s really reaching to assume there’d be lots of those types of claims

        I think many companies would get over their embarrassment at saying something dumb if it resulted in shedding themselves of most of their health care costs.Report

      • Avatar James Hanley in reply to LWA says:

        Mike,

        Sure, Mike. Because the HL ruling clearly applied to publicly-traded corporations, and because there’s such a vast number of people employed by closely-held corporations that want to offer health insurance but don’t want to pay for it.Report

      • Avatar James Hanley in reply to LWA says:

        “Everybody-on-the-exchanges” is far more likely (or less unlikely) than single-payer.

        Agreed.Report

      • Avatar Michael Cain in reply to LWA says:

        “Everybody-on-the-exchanges” is far more likely (or less unlikely) than single-payer.

        On Tuesdays — I only believe in conspiracy theories on alternate Tuesdays — I sometimes say that this was CJ Roberts’ plan all along. Keep the for-profit insurance companies in the loop, generate lots of revenue for Big Pharma and Big Hospitals, and eventually get corporations out of the employee health insurance business with its high inflation rate and into a scheme where their payments are capped as a matter of tax law.Report

      • Avatar Mike Schilling in reply to LWA says:

        Because the HL ruling clearly applied to publicly-traded corporations

        Not yet. But the same logic that gave all corporations freedom of speech (excuse me: restored the freedom of speech of investors (who if their direct investment was in a mutual fund, might not even know that they’re investors), where freedom of speech means allowing corporate management to attempt to influence elections using their money. Are we happy now?) could give them freedom of religion too. After all, if Exxon stockholders don’t agree that it should profess a religion that combines the medical views of Christian Science, Jehovah’s Witnessism, and Scientology (as applied to psychiatric care), they can always replace the Board of Directors.Report

      • Avatar James Hanley in reply to LWA says:

        Mike,

        Absolutely. If we can conceive it, the odds of it happening must be unacceptably high.Report

      • Avatar Damon in reply to LWA says:

        @james-hanley

        “It’s the difference between public funding for housing assistance and requiring you to provide or pay for a room for that person.

        Some libertarians pretend there is no such distinction. They’re wrong.”

        Count me in that category. We’ll have to agree to disagree on it being wrong. Force is force, in whatever it’s manifestation.Report

      • Avatar Michael Drew in reply to LWA says:

        @james-hanley

        What’s the point of debating that [‘“you, by virtue of your relationship with the person who can’t afford X, are obligated to make X available to them.”
        What is the argument against this? Why is this universally illegitimate?’]? You already actually know what my position will be, I already actually know what your position will be. There’s no prospect of either of us saying anything new and informative, and no prospect of either of us winning over the other.

        It’s not clear LWA knows your exact yea-nay position on the question (I don’t – Always illegitimate? Sometimes legitimate? When?), but it’s certainly clear he doesn’t know your reasons for it, which is actually what he asked after. The point of his question was not necessarily to inaugurate a debate, but to ask about the reasons for your position. And to the extent there were to be a debate, the point of that would not necessarily be for one of you to convince the other, but to adumbrate said reasons for the benefit of a) LWA’s understanding of your reasons, and b) the readership’s understanding of the larger issue overall.

        I’m curious about the same question that LWA asked, and I profess I don’t know the answer to it.Report

      • Avatar j r in reply to LWA says:

        I am not James, but I can take a stab at a response that is roughly in line with a libertarian-ish thinking.

        Why can’t we, in LiberalWorld, say that employers are mandated to provide transportation (public, of course) for their workers?

        The moral libertarian argument would point out that all government mandates rely ultimately on the coercive use of force and the threat of imprisonment, which means that it is unjust to initiate force against people who are not hurting anybody else, even if you believe that their inaction will lead to harm. In other words, using force against people simply because they do not wish to be helpful in the way that you wish them to be helpful is unjust.

        As I am neither an anarchist nor a minarchist, the moral argument does not clarify much for me; it only raises further questions about the legitimate use of government force.

        Instead, I will rely on the economic libertarian response and point out that when you enforce a particular arrangement, one based on providing a specific set of goods and services, you are making both parties worse off than you could if you allowed them to freely exchange in the manner that they wish. You might feel that a mandate is necessary, because one party holds a lot more power than the other party, but if that is the case then you ought to address that issue directly.

        In short, if you want to improve people’s well-being, stop trying to decide what they need in advance and help them get to a place where they can bargain for themselves.

        Of course, you, as progressives, can say whatever you want to say. You can design the perfect progressive utopia and go about trying to implement it. You will, however, be faced with the reality that you all in LiberalWorld have to deal with all those people in SocialCon world and LibertarianWorld and IHaveNoIdeologyButI’mStillNotInterestedWorld.Report

      • Avatar Michael Drew in reply to LWA says:

        @j-r

        Thanks. I’m intersted in James’ answer in particular, but I appreciate yours as well.

        So it seems to me that if your answer really is the consequentialist one and not the deontological one, then then you’re not saying it would be illegitimate; you’re just expressing an opinion about the preferable policy. You might convince LWA not to mandae employer provision of transportation because of the effects, but he might surprise you and convince you of the good effects of mandating employer provision of something else. And even if you convinced him that it would be a bad idea in every individual instance, it still wouldn’t have been established that it’s categorically illegitimate and would be illegitimate even if you both were suddenly to flip on one proposal and start to think it would be a good idea to mandate it.

        So I think the issue comes down to whether you sand behind some version or other of the moral argument against it. James says we don’t mandate that X must provided Y with smething by virtue of their relationship, but of course we govern people’s conduct wrt to certain others by virtue of their particular relaionship all the time. I don’t *think* James is arguing against that. So the argument would have to be against mandating provision of some good or other by virtue of a particular relationship. (Kepp in mind, the issue is not mandating that person A walking down the street give $5 bucks to person B walking down the street the other way.) So I’m curious what the particular (moral/civic, not so much consequentialist) argument against mandating provision of things within a particular kind relationship (in particular, employer-employee) is if(!) we agree that mandating other restraints on conduct by parties that kind of relationship.Report

  6. Avatar Mike Dwyer says:

    Zic, I am sure you expected some heat from this post so I will not pull my punches here. Please see that as a sign of respect.

    The reason why Hobby Lobby happened is because a lot of people believe employers should also have to pay for abortions. It’s a line in the sand. Now, if someone on the Left wants to make a clear statement that abortion and contraception are not equal in the ‘family planning toolkit’ then maybe it would alleviate some of those fears, but I don’t see anyone doing that.

    92% of Down Syndrome fetuses are aborted. This number is up dramatically since genetic testing has become more reliable. There is nothing else to call that except the goverment-sanctioned culling of our population. I don’t see anything in this post which leads me to believe that this trend will stop and THAT is what many of us oppose.Report

    • Avatar zic in reply to Mike Dwyer says:

      I would argue that taking on the challenge of parenting a child with down syndrome is a huge responsibility; and a woman has the right to decide if she’s up to that challenge.

      I also don’t have much issue with the notion that health care should pay for abortions; particularly if universal access to contraception is available as part of health care. Short of sterilization, not form of birth control is 100%; there are always the potential of unforeseen health problems, not to mention decisions about parenting a child with severe abnormalities.

      To me, it’s the morality of responsibly procreating that matters; procreation by chance is immoral.Report

      • Avatar Mike Dwyer in reply to zic says:

        Zic,

        “I would argue that taking on the challenge of parenting a child with down syndrome is a huge responsibility; and a woman has the right to decide if she’s up to that challenge.”

        She doesn’t have to be up to the challenge…you know that right? She isn’t legally obligated to care for the child. There’s a gulf between ‘it’s too hard for me to care for you’ and ‘you would be better off not being born’. Somewhere in-between is the decision to put the child up for adoption.Report

      • Avatar KatherineMW in reply to zic says:

        To me, it’s the morality of responsibly procreating that matters; procreation by chance is immoral.

        Hoo boy, does that get into a lot of eugenics issues.Report

      • Avatar Will Truman in reply to zic says:

        My wife and I potentially procreate by chance whenever we have sex, since abortion is not something we would consider and contraception is not 100% reliable. If she had become pregnant before we were ready, would declining to abort have been immoral?Report

      • Avatar James Hanley in reply to zic says:

        procreation by chance is immoral.

        Our third child was wholly a product of chance, not planned, and initially not desired.

        The implications of your statement are… troubling.Report

      • Avatar Michael Drew in reply to zic says:

        Re: “procreation by chance is immoral”

        Allow me to suggest that @zic’s meaning was that the enforcement of any procreation by chance that any (woman?) would like to have avoided (i.e. allowed to determine by affirmative choice if possible), even if enforced “merely” by the society’s failure to alleviate economic inequality (by nearly any means necessary so long as not not baldly and grossly immoral for some other reason*) that would have allowed many women a chance to replace chance with choice, is immoral. Obviously zic can inform me that that was not her meaning at all, but my sense from the OP is that it was.

        * Granted, a potentially rather huge caveat, depending on the values inserted for “immoral” there.Report

      • Avatar Michael Drew in reply to zic says:

        @will-truman

        My wife and I potentially procreate by chance whenever we have sex, since abortion is not something we would consider and contraception is not 100% reliable. If she had become pregnant before we were ready, would declining to abort have been immoral?

        Irrespective of whether it was @zic ‘s intention to suggest that it might have been, I’m going to suggest that, abstractly speaking, it could have been. In your case, in actuality, it certainly would not have been. So I’m talking about a hypothetical you and Clancy that aren’t really you and Clancy here. But I take the meaning of your question to be about the abstract case, not specifically what it would have been moral for actual-you-and-Clancy to do. So if you two had been drastically less ready than you had been to the point that to have had the child and to raise it (let’s also say that this hypothetical couple were determined not to give the child up for adoption and would not have done so despite any entreaties to do so, as is the case among many prospective unfit parents each year) would have been to bring a person into the world to whom great harm was going to be done starting at birth and running through most of childhood, then, yes, I think in that case given those two possible eventualities, that couple actually was morally obligated to abort. Or at least, on the whole it would have created a morally better situation for them to have aborted the pregnancy.

        To put it more simply, yes, I believe that each year a significant number of childbirths happen that should not have happened; that morally, given the realistic reality that the children would not have been given up for adoption and that this means that their fate was to be raised by radically unfit parents who would do harm to the real people that the zygotes never were and could have been prevented from becoming, many of those pregnancies should have been aborted. The only real reason that they shouldn’t have is because in many of those cases the resources for the abortion was not available. That’s an argument for either public or charitable provision of family planning services for the poor and marginalized and otherwise unfit up to and including abortion service. (I feel the need to add here that no one should ever be coerced into, or out of, electing to abort a pregnancy.) Further, the lack of resources available to have an abortion in my mind is underscores the extent to which the resources to responsibly raise a child in this situation were absent in the first place. (Not that simple lack of resources implies that a pregnancy should be aborted; that’s something that can be built up over time. A deeper form of unfitness such that abuse is likely is necessary IMO.)Report

      • Avatar Will Truman in reply to zic says:

        @michael-drew I pretty strongly disagree, though I do understand where you’re coming from. I am hard-pressed to come up with a circumstance where declining to abort is the immoral (as opposed to, in some cases, morally acceptable or neutral) thing to do. But if I didn’t have those priors, I might well look at abortion the same way I look at sexual behavior that can produce an unwanted and/or unprepared-for child which I see as, if not immoral, then in a neighboring ZIP code.Report

    • Avatar Chris in reply to Mike Dwyer says:

      I’m sure you’ve heard the rare and safe slogan from pro-choicers on the subject of abortion. You may also have heard them talk about how the best way to make abortion rare is to prevent pregnancy in the first place, and most realistic way to do that is through access to contraception. That said, access to abortion is as important to reproductive freedom as is access to contraception. So, while they are different, and while pretty much everyone who’s pro-choice recognizes this, if you’re looking for people to separate them by saying “people should have access to one but not the other,” where access to medical procedures in our system is largely determined by insurance, and insurance is generally provided by employers, then you’re probably not going to get that.

      So, it seems to me that pro-choicers are the ones who recognize the difference, but who understand that with respect to women’s health and independence, they are both necessary. It’s the other side that doesn’t seem to recognize either of these propositions, as evidenced by the fact that you say that in order to prevent abortion they draw the line before contraception.Report

      • Avatar Mike Dwyer in reply to Chris says:

        Chris – the line gets drawn because, as you and Zic both point out, most pro-choicers see no difference between contraception and abortion. That is why abortion is the preferred method of contraception for many in blue states and that is why the HL case mattered.Report

      • Avatar zic in reply to Chris says:

        That is why abortion is the preferred method of contraception for many in blue states. . .

        You’ve got to be kidding me, @mike-dwyer. If you’re going to suggest this, you’re going to have to substantiate it. But I would encourage you to revisit a notion here that women easily seek out abortions as if it were a lark, too; instead of recognizing that having an abortion is one of the most difficult decisions a woman will ever make.Report

      • Avatar Mike Dwyer in reply to Chris says:

        Zic,

        ‘Preferred’ may be a bit of hyperbole, however ‘favored much more than in red states’ seems accurate:

        https://ordinary-times.com/blog/2012/02/22/the-abortion-post-i-didnt-plan-to-write

        It may be a difficult decision but the facts show that it is a decision many women make more than once.Report

      • Avatar Kim in reply to Chris says:

        Mike,
        Most women seeking abortions were on the pill, weren’t they?
        Given that abusive men seem to feel impregnating women who do not want to be pregnant….

        How many of those abortions are because the women PREFER them,a nd not because someone stole their birth control pills? (or, god forbid, replaced them with fertility pills).Report

      • Avatar Chris in reply to Chris says:

        I just pointed out one way in which pro-choicers see a difference. We see a difference. We just think they’re both necessary. Again, it’s the pro-lifers who see no difference, or at least act as though there’s no difference by drawing a line before contraception. It’s not like pro-choicers are trying to make laws that affect both.Report

      • Avatar Chris in reply to Chris says:

        Put differently: pro-choicers do not see contraception as a gateway to abortion. We see them as completely separate things. Pro-lifers, on the other hand, fail to make a distinction, at least in practice.

        The problem is on ya’ll.Report

      • Avatar morat20 in reply to Chris says:

        Mike,
        I notice your 2012 analysis left out any attempt to adjust for availability of abortions.

        Surely red states don’t have as many abortions as blue states, because red states have been doing everything they can to insure NO ONE can have an abortion. Texas is one those leading the charge.

        I understand the official abortion rate in some South American countries are very, very low. The unofficial rate is, of course, much higher.Report

      • Avatar Mike Dwyer in reply to Chris says:

        Morat20,

        Per this map…

        http://www.thedailybeast.com/articles/2013/01/22/the-geography-of-abortion-access.html

        Access doesn’t really seem to be a huge problem unless you living in the middle of the country and that seems fairly attributable to the sheer distance people live from cities. I feel like the access thing is a bit of a red herring. The reason for the difference in abortion numbers is simply a cultural thing.Report

      • Avatar Mike Dwyer in reply to Chris says:

        Chris,

        You say that you don’t see contraception as a gateway to abortion, and maybe you don’t, but the OP and Zic’s subsequent comments seem to strongly indicate she sees the two items as linked. When she says that access is a universal right, how could anyone argue that a healthcare plan shouldn’t include both? That’s where the problem occurs. It goes back to my old complaint which is that too many liberals see rights where they don’t exist.Report

      • Avatar Will Truman in reply to Chris says:

        The state-to-state disparities predate the somewhat recent spate of anti-abortion legislation. The best statistics I found were from either 2004 o 2008. I suspect that if I went back to 1980 they would nonetheless tell a similar story.

        A quick perusal: In 1980 there were 97,000 abortions by Texas woman, and 178,000 abortions by New York women, when the population difference between the two was pretty small (14m to 17m). Around 4,000 Utah abortions, compared to a little under 4000 in Delaware, with Utah have over twice the population. 8,000 in Arkansas versus 6,000 in Rhode Island with the former having twice the number of people.

        There are outliers, I’m sure. And I think there is more to it than culture. Not just regulations, but rural vs urban (though I did choose Utah precisely because it’s not particularly urban) and cost-of-living (and thus the cost of having children). Even so, I have yet to see anything that suggests that culture isn’t a significant component.

        (Note: These numbers are by state-of-residence and not the state where the procedure was performed.)Report

      • Avatar zic in reply to Chris says:

        @mike-dwyer

        There are some good maps for state-by-state comparisons here:
        https://www.guttmacher.org/statecenter/unintended-pregnancy/

        That’s unintended pregnancies, there’s a link on the left for abortions.

        I don’t think simply looking abortions alone is enough, though. Unintended pregnancies that result in live births matter, which is why I linked the map I did. I would be most comfortable seeing a very low unintended pregnancy rate, indicative of responsible contraceptive use. The third piece of information needed, which these maps don’t provide, is how poverty impacts these numbers; particularly in states like Delaware, New York, and Texas.Report

      • Avatar Will Truman in reply to Chris says:

        A color-coded map on abortions as a percentage of pregnancies is available here. Numbers from 2008, if I recall.Report

    • Avatar Kim in reply to Mike Dwyer says:

      Mike,
      I’d be far more impressed if you were quite so militant against American Eugenics policies.
      We still have Eugenics laws on the books, and they’re still (often) enforced.

      To me, it is a FAR worse restriction on liberty to say “You may not bear children” (or even forcible sterilization), than to simply abort a child upfront.Report

  7. Avatar Michelle says:

    Great piece, Zic. While I have my doubts as to whether you can call access contraception a universal human right, I don’t think there can be any argument that women’s ability to control their fertility and determine when and how many children to have (to the greatest extent possible) is central to women’s rights and personal economic freedom. To me, it’s a social choice we make to empower women, to improve their health and the health of their children, and to provide them with full equality.

    I further agree that the individual woman’s conscience supersedes whatever conscious a for-profit corporate person might have. Hobby Lobby’s expansion of corporate personhood to include religious consciousness is what disturbs me most about the decision.Report

    • Avatar Saul Degraw in reply to Michelle says:

      Why can’t you call access to contraception a universal human right?

      This is an argument I’ve gotten into before, not necessarily over contraception, but over expanding the concept of what is and what is not a human right. Conservatives (including people here) have told me that one of their problems with the left and liberalism is that the left and liberals are constantly expanding the concept of what is and what is a human right like public transport and internet access.

      I honestly don’t see a problem with this. I don’t see why the concepts of human rights need to be locked and frozen in the time of the ideas of Locke and the Enlightenment. We live in a highly connected and globalized world and wealth building and livelihoods are dependent on such things.Report

      • Avatar Michelle in reply to Saul Degraw says:

        Saul–I suppose it might be subsumed under a right to privacy, but I don’t see it as a right in and of itself. Ditto for access to health care. These are political and economic choices that civilized societies make; there’s nothing inherent about them.

        Would I prefer to live in a society where health care is available to all and where access to birth control was part of that health care. Yes, and thus I vote accordingly and do what I can to work toward that goal.

        Moreover, I’m not sure that making everything part of the “rights” debate really helps the cause because rights are considered inviolable, but they invariably conflict with other sets of rights. Which rights take precedence? It’s a political choice.Report

      • Seems to me that it sort of works like this (and Zic makes a good argument for it, though I think she’s trying to make an even broader argument): To the extent that health care is a universal right, then so too should contraception because contraception is critically a form of health care.

        Whether one accepts the second part (that contraception is a human right) depends highly on what they think of the first (that health care is a human right).

        There may be an argument that contraception is a human right apart from whether we consider health care one, but I’m not particularly sold on that.Report

      • Avatar Damon in reply to Saul Degraw says:

        @saul-degraw

        I’d think most libertarians wouldn’t consider expanding public transport and internet access as “rights”. It generally goes against their entire would outlook.Report

      • Avatar Kim in reply to Saul Degraw says:

        Will and Michelle,
        Right to Autonomy over one’s own body is the proper originating right, not privacy, nor health care.Report

  8. Avatar KatherineMW says:

    Regarding the charts:

    The first chart shows that maternal mortality in the US fell very sharply between 1920 and 1950,before the advent of the birth control pill. Off the top of my head, I would guess that medical advances such as the discovery of penicillin in 1928 had a lot to do with this (the slope of the decline becomes much sharper shortly after 1928), although clearly there was also something in the start of the 1920s that sparked the decline. Regardless, it’s very clear that the birth control pill didn’t have anything to do with with the major decline, since maternal mortality was already very low (compared to previous decades) by 1960.

    For the second chart, I have to question the direction of your cause-effect theory. The inverse correlation between median income (or GDP per capita – which isn’t as good a measure as median income but is far more widely available) and fertility is a worldwide trend. It holds true even for countries and regions where women have very little power. It’s a very marked trend in the Middle East and North Africa. The developing region where the trend is least evident is sub-Saharan Africa, which is also the region that has seen the least income growth (a long periods of income decline) over the last 60 years. (I’m using data from the World Bank’s World Development Indicators.)

    It is a very widely recognized phenomenon among people who study development, and the causality is widely considered to work in the opposite direction – as people become wealthier, and as infant mortality declines, families have fewer children. There’s very likely a reinforcing effect where fewer children in turn reduces a family’s costs and makes them better off, but the starting point of the spiral is rising incomes. When people are better off, and face less risk of their children dying at an early age, they have fewer children.

    North America in the 1960s is a clear outlier, in that fertility rates fell much faster than would be expected from the increases in income, and that, presumably, is due to the advent of the birth control pill.

    My preferred outcome, given what we have for a political system, legal precedent, and statute would be for employees working for corporate objectors to be covered by the government and or insurance companies in a way that seems seamless to the employee; while corporate objectors pay for their objection with a tax penalty exactly as real, non-corporation people pay a tax penalty when they decline to purchase health insurance, thus offsetting the rent-seeking objectors are placing on everyone else.

    I would agree with that as the best way of dealing with contraception under the Affordable Care Act.Report

    • Avatar zic in reply to KatherineMW says:

      There’s very likely a reinforcing effect where fewer children in turn reduces a family’s costs and makes them better off, but the starting point of the spiral is rising incomes. When people are better off, and face less risk of their children dying at an early age, they have fewer children.

      I don’t think it’s so easy to separate out; but rising income generally goes hand in hand with contraception — first, the ability to afford it, and second, the increased income the woman brings into her family because she’s able to work instead of churn out baby after baby; based on the UN report. I don’t suggest that this is simple; but there’s no doubt that access to contraception correlates with increased family wealth and rising living standards. Here in the US, this is reflected by the fact that it’s women in poverty most likely to have unplanned children.Report

      • Avatar KatherineMW in reply to zic says:

        The broad theory is that both are true: http://onlinelibrary.wiley.com/doi/10.1111/j.1728-4457.2013.00557.x/abstract

        According to conventional demographic theory, high fertility in the early stages of the demographic transition is the consequence of high desired family size. Couples want many children to assist with family enterprises such as farming and for security in old age. In addition, high child mortality leads parents to have additional children to protect against loss or to replace losses. Fertility decline occurs once rising levels of urbanization and education, changes in the economy, and declining mortality lead parents to desire
        a smaller number of births. To implement these desires, parents rely on contraception or abortion, and family planning programs in many countries accelerate their adoption (Notestein 1945; Easterlin 1975, 1978; Lee and Bulatao 1983).

        This theory is widely accepted as a broad outline of the forces that shape fertility transitions and is consistent with much empirical evidence (Bryant 2007). As countries develop, fertility generally falls and there is a strong inverse correlation between development indicators and fertility in contemporary societies (with Africa characterized by relatively low levels of social and economic development and, accordingly, high fertility). The theory is not without its critics, however, who claim that fertility change can be brought
        about by ideational change and the diffusion of ideas.

        In short – as people become economically better-off and as child mortality declines, they want to have less children. At this point, increased access to contraceptives is useful and desirable.

        Charts later on in the same article show women’s “ideal family size” (the number of children they’d like to have) based on surveys of women in different regions. In sub-Saharan Africa, numbers are very high, with country averages ranging from 4 to 9; this somewhat accords with the actual average fertility rate in sub-Saharan Africa, which is 5. Ideal family size in Latin America and east Asia is substantially lower – and so are fertility rates ( in the 2-3 range).

        So at very low levels of income (and generally in more agricultural economies), people tend to want – and may economically benefit from the labour of – more children; in those situations, increased use of contraception wouldn’t by itself have a substantial positive impact on economic well-being.

        As people become economically better-off, both their demand for and their access to contraceptives increases.Report

    • Avatar Pinky in reply to KatherineMW says:

      Use of contraception doesn’t particularly correlate to availability of contraception. For example, the total fertility rate in the US spiked during the postwar years but by the 1960’s was returning to the levels it had been. There are always methods available. The issue seems to be one of culture.Report

    • Avatar Murali in reply to KatherineMW says:

      @zic @katherinemw

      For what its worth, fertility rates in Singapore have plunged have plunged in Singapore accompanied by a rise in education levels for women without extensive use of birth control pills. I don’t have data on birth control pill usage (though other forms of birth control may be used instead) in Singapore. While IUDs and implanon are the dominant forms of birth control used now, implanon is rather recent. And at least, if celebrity blogger Xiaxue is to be believed, usage rates of birth control pills is very low. This makes it seem more probable that the drop in birth rates over here (it dropped below replacement in the mid 70s) was not brought about by the availability of the pill specifically (though of course it was probably brought about by education and the availability of other forms of contraception including abortion)

      That is to say, if high birth rates can be curtailed without the pill in one country, it is rather dubious to say that availability of birth-control pills is required for women to exercise control over their bodies. or for that matter to attribute a similar decline in birth rates to the pill in your country (at least in the strong way that you are doing). As Katherine has mentioned above, it is not the pill, specifically, but contraception writ large that provides women with control over their bodies.

      Incidentally ,while the hobby lobby case was silly in that the greens had a wrong idea of how the particular contraceptive devices and pills in question worked (i.e. they were not abortificients) they did not refuse to cover all contraceptive pills and devices, only some types of contraception. Most women would still have had their contraception covered.Report

      • Avatar Kim in reply to Murali says:

        Murali,
        You’ve apparently not heard of the “popping pinholes in the condom” approach to family planning. The right to autonomy over one’s own body is infringed upon daily — sometimes by guys substituting other pills for someone’s birth control pills.Report

      • Avatar Murali in reply to Murali says:

        Which is relevant to my discussion how? As a matter of fact, (at least to the best of my second hand knowledge from my family members, three of whom are doctors and 1 who is a medical student, prescription of contraceptive pills is very rare. It is certainly rarely prescribed to teenagers. Yet, there has been a steady drop in birth rates even through extensive pressure by the government to increase fertility. This demonstrates a tremendous ability by women to successfully control their own reproduction regardless of low rates of pill use.Report

    • Avatar Kim in reply to KatherineMW says:

      Katherine,
      Most probable decrease in maternal mortality is due to more widespread adoption of handwashing and sterilization, at least in part due to the formation of our modern “Medical Schooling.”

      I’m not certain that all the maternal mortality deaths are being reported properly. One takes poisons early on if one wants to kill the unborn, after all. One might not expect “died of poison” to be counted as “maternal mortality” in all cases.Report

  9. Avatar j r says:

    I’ll take @leeesq’s challenge. I will first say, however, nice work on the piece and that I object to almost none of the substantive parts of the piece in regards to the importance of contraception or to the desirability of working towards access to contraception for all women.

    That being said, I do want to comment on this statement:

    But our fraught debates about religious rights vs. reproductive healthcare indicate reproductive-healthcare rights are not perceived as universal in the United States, reproductive rights are not accepted as an inalienable right, and there is no compelling force behind the UN’s suggestion that should be.

    The reason that reproductive healthcare rights are not accepted as inalienable is because they are not inalienable. And that is not me expressing an opinion or even stating a philosophy. Rather, that is me simply alluding to the definition of inalienable: “incapable of being alienated, surrendered, or transferred.” When we speak of inalienable rights, we speak of a metaphysical condition and not of a desired state of affairs. The right to speak your mind is inalienable, not because it is wrong to take it away, but because it cannot be taken away. A person’s mind is his or her own and someone may infringe upon it by use of coercion or force, but it remains the case that my voice is my voice as long as I live and even after I die it is no one else’s.

    To speak of access to any good or service, be it reproductive health care, any other sort of health care, education, etc., as a universal right is a statement of aspiration. We wish it to be so, which is fine. It is just important to remember that wishing something to be so is not the same as it being so. Access to something can never be an inalienable right, because it necessitates that some other person take positive action to provide it for you. There is a real an meaningful difference between saying, “leave me in peace to do as my body what I wish” and saying, “you must do your part to provide me with this particular good.”

    None of that is to say that i do not believe that we as a society ought not impose certain types of positive action on each other. We pay taxes to provide for public goods and I fully support maintaining access to a modicum of reproductive health care services as one of those public goods. The relevant issue here is that this is much more an entitlement than it is a right. And that is important to how we go about building consensus on how best to provide that entitlement.Report

    • Avatar zic in reply to j r says:

      The relevant issue here is that this is much more an entitlement than it is a right.

      You are not entitled to someone else’s uterus.Report

      • Avatar j r in reply to zic says:

        OK, I thought that I was making my point fairly clear, but perhaps not. Here it is:

        The ability of an individual to do what she wishes with her body in the form of seeking to procure reproductive health services is an inalienable right, by definition.

        The desire that an individual be provided certain goods and services by another person or group of people, while in many cases desirable, is not an inalienable right, by definition.

        As soon as you place a responsibility on a third party to provide or help provide some good or service, you are necessarily giving that third party a voice in the transaction, again, this is by definition.

        You may wish that person not to have a voice, but they do. And they have that voice, in part, because you brought them into it. Therefore, if you don’t want third parties having a voice in how women use their uterus(uteri?), your best bet is to get third parties out of the picture to as much a degree as possible. And the best way to do that is to move towards a model of health care provision that lets individuals procure goods and services with their own dollars and not through some third party who is legally obliged to comply.Report

      • Avatar James Hanley in reply to zic says:

        Good thing he wasn’t talking about controlling someone else’s uterus, then, eh?Report

      • Avatar Jaybird in reply to zic says:

        Is anyone claiming to be entitled to someone else’s uterus?

        Because when I flop this around to, oh, weed or something, it becomes an argument about whether I should have to provide weed to you and whether you have the right to smoke weed.

        Arguing “you are not entitled to someone else’s lungs” is an awesome argument against the prohibitionists who say “you do not have the right to smoke weed and we’ll throw you in the hoosegow if we catch you doing it” but it’s less of a compelling argument against the person who says “Buy your own weed.”

        All that to say, it’s totally cool to argue against the Hobby Lobby ruling and those who agree with it. I just don’t think it’s cool to argue against the Hobby Lobby ruling as if it were Prohibitionist. It’s not.Report

      • Avatar zic in reply to zic says:

        This sort of ignores the elephant in the room: an ongoing effort to not only eliminate the legal right to abortion, but to continue to allow discrimination against women when it comes to basic and essential health-care services.

        You’re free to focus on HL as not going there, but you would first need to go look at the history of the foundation which actually put fourth the case on behalf of the Greens, where the groups funding comes from, and the history of cases it’s pursued. (Hint: Beckett Fund.)

        I am not writing to HL as the whole problem, but as a symptom of a larger problem of denying women the basic human right of controlling their own reproduction, and thus, their freedom and destiny. IReport

      • Avatar KatherineMW in reply to zic says:

        I’m with Jaybird on this. And it’s an effective argument, because the idea of mandatory government provision of weed is making me laugh.

        It’s entirely legitimate to say “[x] set of services are essential, and government has a responsibility to ensure people have access to them”, where set [x] can include contraceptives, health care, education, clean water, sewage treatment, housing, food, whatever. And I personally don’t have an objection to referring to these things as “rights”; libertarians typically do object to such terminology.

        But there’s an important and unavoidable distinction between not providing things, and legally barring people from having things. The issue of contraception (I won’t get into the abortion debate here, because the argument is unproductive – pro-life and pro-choice people disagree about how many people possessing rights are involved in the action: one (pro-choice) or two (pro-life)) falls into the former category.

        The HL case is something else entirely, concerning whether religious business-owners have an unalienable right to tax breaks, even if they don’t take the actions that those tax breaks are designed to reward.Report

      • Avatar North in reply to zic says:

        I hate to pile on here but I do agree. I’m a staunch supporter or choice in the area of reproduction but saying that contraceptive and reproductive choice is a right is problematic.
        I would say that you have a right not to have others interfering in your choice whether or not to conceive and whether or not to have an abortion.
        I would say you have a right not to have others interfer in your ability to purchase contraception.
        Where I struggle is the idea that one has a right to be provided with contraception or abortion services at no cost. That them implies that someone (or everyone?) has an affirmative natural obligation to provide these things. That’s where I struggle with positive rights.

        Now if we say that it is excellent policy to provide free contraception and abortion choice to everyone then I’m 100% on board. When we start calling it a human right is where I think the wheels come off.Report

      • Avatar Chris in reply to zic says:

        I say we do the only sensible thing and stop talking about rights altogether.Report

      • Avatar Dave in reply to zic says:

        @chris

        That would make my day.Report

      • Avatar James Hanley in reply to zic says:

        Jaybird, Katherine, North,

        “you would build an ugly world. It disgusts me. … I understand that no person survives alone, as an island. So what you’re painting here is a picture of hell on earth.”Report

      • Avatar James Hanley in reply to zic says:

        @dave

        They’re making the same argument I made, so I just wanted them to be clear on what the implications of their position are.Report

      • Avatar KatherineMW in reply to zic says:

        James – Don’t pull me into your argument. I’ve outright stated that I’m okay with the concept of positive rights; I just think it’s useful to have clarity in the distinction between “government/society has an obligation to ensure access to [x]” and “government does not have the rightful power to prevent you from doing [y]”, and zic’s formulation of her argument seems to elide that distinction.

        You say “you don’t have a moral right to have someone else provide your needs”. I say, conversely, that people do have a moral responsibility to provide for the basic needs of others.

        And with regard to “Hanley’s Hot Dog Heaven” discussed below – you should be able to provide health insurance in whatever form you like, but if it doesn’t fit the government’s minimum requirements for being considered “employer-provided health insurance for which the employer is eligible to receive tax compensation”, then you’re still legitimately liable for all taxes that are required of business-owners who don’t provide such insurance to their employees. So financially, you’d be better off not providing insurance, increasing your employees’ wages instead, paying the taxes, and letting your employees pick their own health insurance. Regardless, you’re not being “forced” to do anything.Report

      • Avatar James Hanley in reply to zic says:

        Katherine,

        My apologies.Report

      • Avatar Jaybird in reply to zic says:

        Farewel happy Fields
        Where Joy for ever dwells: Hail horrours, hail
        Infernal world, and thou profoundest Hell
        Receive thy new Possessor: One who brings
        A mind not to be chang’d by Place or Time.Report

      • Avatar Patrick in reply to zic says:

        @chris and @dave

        I suggested this… two years ago?Report

    • Avatar Margaret Nolan in reply to j r says:

      To j r: If our Declaration of Independence, as well as the Fourteenth Amendment to the United States Constitution, declare as unalienable rights, “life, liberty, and the pursuit of happiness,” would it not be a violation of those rights to exclude women with legal restrictions such as the Hobby Lobby ruling? Is any health right of men excluded by our esteemed Supreme Court because of the Green’s religious sensitivities? This gender-specific belief cannot be anything but a violation of the basic rights of women to life, i.e., protection of their health. Are there other health protection benefits that the Greens of this world can exclude by dint of their self-declared beliefs?Report

    • Avatar Kim in reply to j r says:

      jr,
      ” The right to speak your mind is inalienable, not because it is wrong to take it away, but because it cannot be taken away.”
      … so I can’t stitch your mouth shut?

      The only truly inalienable right is freedom of thought, and even that may be infringed upon — though the ways to do so are gruesome indeed.Report

  10. Avatar James Hanley says:

    While I am 100% in agreement on the value of access to reproductive healthcare and choice, I renew my objection to formulations like “My strongest objection to the [Hobby Lobby] decision is the misappropriation of conscience.”

    It’s a false interpretation of the case, because Hobby did not seek, nor was it granted, the authority to prevent its employees from using the contraceptives in question. It just asked, and was allowed, to not directly participate in the provision of those contraceptives.

    As j-r notes above, there are many things appropriate to do through our taxes, and a good case can be made that providing for reproductive services is one of them. But even with fundamental rights we do not conscript an identifiable class of people to make the provision for others. We provide public defenders because we see ensuring due process for defendants as a fundamental right, but we do not require employers to cover the cost of their employee’s criminal defense.

    Further, if your argument about fundamental rights and “misappropriation of conscience” is right, then we cannot justify allowing even religious non-profits to opt out of this coverage, but almost nobody seems willing to go that far, even ACA’s staunch defenders.

    While there certainly is a good pragmatic argument for requiring employer coverage, and there is definitely a good legal argument that a closely-held corporation cannot have religious beliefs, the “misappropriation of conscience” line has no validity.Report

    • Avatar zic in reply to James Hanley says:

      Perhaps abscond is a better word. There is a definite notion that it’s okay to abscond women’s moral rights and make reproductive choices for them.Report

      • Avatar Margaret Nolan in reply to zic says:

        Thank you, Zic. Your voice was needed to urge some thoughtful reflection on the issue of women’s right to health care. I wonder if there are restrictions on health care issues for men which are similarly gender-specific. The selectivity of this “belief” exemption has troubled me from the start.Report

      • Avatar zic in reply to zic says:

        Thank you, @margaret-nolan

        I think this roots deeply in the notion that men are human, and women, in so much as they are like men, are equal. But where they’re not, it’s their problem, women’s problems, and men don’t really have much concern (lest of all concern for paying, ‘less it’s their women).

        My answer is that men and women, together, are equipped to carry on the race, and the basic, essential health-care needs of both should be met; women’s don’t constitute some extra ‘other.’Report

      • Avatar James Hanley in reply to zic says:

        Zic,

        No, you don’t have a moral right to have another person provide your needs.

        If you are starving of hunger on the street, the government does not require that I feed you (even if I have a vast surplus of food). If you are drowning, the government does not require that I save you (even if I could do so without endangering myself).

        Or let’s put it this way, if the desperately poor single mother down the street needs access to contraceptives for health reasons, have I absconded her moral rights by not providing them to her? Have I misappropriated her conscience? Have I exerted entitlement to her uterus?

        Now compare to the case of the same person but who does have access to contraceptives, but I prevent her from picking them up at the pharmacy, or I throw them away when she’s not looking. Are these two cases really the same? Because your line of argument makes them the same.

        Please understand, the vast majority of your post I fully agree with. My libertarianism doesn’t cause me to object to government provision of contraceptive care. But I object to your line of reasoning that anyone who doesn’t want to be required to contribute to another person’s contraceptive care beyond their tax dollars is violating someone else’s rights.

        I’ll go even farther and say that your position is inherently contradictory, because we treat the right to religious practice as a fundamental right, and your approach would require some people to violate their religious beliefs, which is a misappropriation of their conscience.

        Let’s assume not Hobby Lobby. Let’s say–as several of our local lawyers argue, that a corporation can’t have religious beliefs, and even in a closely held corporation there’s too much separation between owner and corporation for the owner to claim that the corporation’s obligations impinge on their religious freedom.

        Let’s assume a sole proprietorship. Your argument doesn’t allow a distinction for them. If I am a sole proprietor running Hanley’s Hot Dog Heaven, and you work for me and get insurance as part of your compensation package, then by your argument I am misappropriating your conscience or absconding with your moral rights. But I’m a devout Catholic who believes all contraception is evil, and while I figure it’s no skin off my nose if you sin, I do figure God’s going to hold me accountable if I aid and abet your sinning, then you are likewise misappropriating my conscience and absconding with my moral rights.

        Access to contraception, we agree, is vitally important to women’s well-being and ability to participate equally in society. Let me even agree that it’s a fundamental right. Even so, that doesn’t necessarily mean it trumps all other claims of right, and it doesn’t mean that those who stand by their claim of right are staking a claim to your uterus–rather, they’re trying to avoid getting morally involved with your uterus.

        Simply put, your basic position isn’t at all wrong, but like many advocates you go too far too readily and don’t recognize limits to the reach of your position.Report

      • Avatar zic in reply to zic says:

        @james, you would build an ugly world. It disgusts me. As a woman, I understand that no person survives alone, as an island. So what you’re painting here is a picture of hell on earth.Report

      • Avatar James Hanley in reply to zic says:

        zic,

        Get serious. I’ve made it clear that I am fine with the government directly providing contraceptive access, and you accuse me of building a “hell on earth” world where everyone is “an island”?

        And of course you know that I am fully supportive of people working together voluntarily and collaboratively, far from the everyone-an-island model.

        In the past month you have repeatedly misconstrued my comments in very egregious ways. I am formally requesting that you stop doing this. Our disagreement does not justify it.Report

      • Avatar Dave in reply to zic says:

        @zic

        @james you would build an ugly world. It disgusts me. As a woman, I understand that no person survives alone, as an island. So what you’re painting here is a picture of hell on earth.

        Can you point to the hellfire and damnation please?Report

      • Avatar zic in reply to zic says:

        If you are starving of hunger on the street, the government does not require that I feed you (even if I have a vast surplus of food). If you are drowning, the government does not require that I save you (even if I could do so without endangering myself).

        You, personally, may not have a moral right to feed someone, to provide needed health care. But society has a moral right to provide basics of clean water, food, shelter, and education. Morally, by my lights. In this country, that moral imperative is accounted for with your taxes, should you earn enough to be required to pay them.

        But I still hold that HL or any corporate owner has no moral right to determine the types/kinds of health care an employee can access — that is the employee’s moral decision. That business owner’s moral right is in making those choices for him or herself, not for others.

        So the hell-on-earth I see is one where, because we have no personal moral responsibility to others (except the moral responsibility to limit their behaviors based on our religious beliefs) while we also are hell-bent on limiting government to the point that it, too, cannot help meet people’s basic needs.

        Women pay for the health insurance, and it should cover their basic health-care needs. That it has not in much of this land for so long is a moral outrage.Report

      • Avatar Brandon Berg in reply to zic says:

        you would build an ugly world. It disgusts me. As a woman, I understand that no person survives alone, as an island. So what you’re painting here is a picture of hell on earth.

        Jesus, James! You made her revert to childhood!Report

      • Avatar James Hanley in reply to zic says:

        So, once again, you are unrepentantly misrepresenting me. Because the hell on earth claim was made about me, your description of what you mean by that logically is also about me. And of your three descriptors, not one accurately reflects my views.

        You’ve had enough objections from me by now that I can no longer view your statements as mere errors. They appear to be conscious and intentional efforts to smear me by making false statements about me, or at the very least are statements made with reckless disregard for the truth. In other words, zic, it appears to me that you a a purposeful and intentional liar, and in future I will assume as much until you start making honest representations of my positions.Report

      • Avatar James Hanley in reply to zic says:

        @brandon-berg

        I’m not comfortable with that phrasing. The whole women-as-children concept gets implicated, and I want to keep plenty of distance from that.

        I am not suggesting, however, that you in any way intended that implication.Report

      • Avatar Dave in reply to zic says:

        @james-hanley

        I’d like to respond to Zic later this evening when I get home and can address this. That won’t be until late tonight. In the meantime, let’s all take a lap or two, or in my case 30. Let’s not throw gasoline on a fire por favor.

        Contrary to popular belief, I do enjoy a little diplomacy every now and then. 😉Report

      • Avatar Brandon Berg in reply to zic says:

        @james-hanley Entirely personal, I assure you. But you’re right. I shouldn’t have said that, as it will only feed zic’s belief that all disagreement with her on this issue is borne of misogyny.Report

      • Avatar Mike Dwyer in reply to zic says:

        Zic,

        “But society has a moral right to provide basics of clean water, food, shelter, and education.”

        I think you meant ‘moral responsibility‘ here? I’ll go along with water, food and shelter. I believe pretty strongly in education but even that seems like a stretch to call it moral.

        As noted by several other commenters, the problem here is when you keep talking about the right to contraception and/or abortion. I don’t think you’ve done a good job of explaining if that means the right to access or the right to have it provided for oneself. You’ll get plenty of support on the first one, including from me, but I think you will see your support drop off significantly on the second one.Report

      • Avatar zic in reply to zic says:

        @mike-dwyer

        First, what does ‘provided’ mean? Paid for via one’s health-insurance, which you pay premiums for and which is part of your compensation for employment? Then yes, contraception should be provided. Just like vaccinations and prostate screenings should be provided. I will stress again that there is ample evidence over many decades that shows this is essential care and that women have been discriminated against.

        I said I have not problem with insurance covering abortion; but I would not see that coverage mandated; but I am simply giving you my honest opinion, I’m no spokesperson for liberals in general. As I said in OP, I don’t believe for a moment this the HL case is merely about the contraceptive mandate, it’s a brick in the road to outlawing abortion altogether and an effort to define life as starting at conception. It’s one play in a long game, not a means and end to itself, and one only needs to glance through the cases the Beckett Fund has pressed to see that.

        The contraceptive mandate is not important because it mandates free contraception, it’s important because it defines contraception as a basic health-care need of women, and it ends health-care discrimination against women simply because men don’t get pregnant; immaculate conception being uncommon if not impossible.Report

      • Avatar Michael Drew in reply to zic says:

        Or let’s put it this way, if the desperately poor single mother down the street needs access to contraceptives for health reasons, have I absconded her moral rights by not providing them to her? Have I misappropriated her conscience? Have I exerted entitlement to her uterus?

        The government isn’t governing that relationship in the employer mandate of the ACA. It’s governing the employer relationship. And it’s not governing that relationship unless you have 50 employees. If the sole-proprietorship has 50 employees, then that is that point at which it has determined that your religious liberty no longer extends through your business dealings, because you’re having to great an effect on too many others. And it does this only by imposing a tax penalty that likely in the end will cost you less than providing insurance for the employees. (Or was before Hobby Lobby.)

        I acknowledge that people feel strongly that religious lberty should continue to extend through business dealings of that sort (having employment relationships with >50 people) such that even the tax penalty imposed for not meeting a generally applicable regulation about what insurance must provide should be disallowed or excepted. But there’s a reasnable argument that drawing such a line is also legitimate. Ultimately, there will be religious claims of that sort that we’ll have to draw lines about. It’s strong emotions about religious liberty that make people indignant on the one side, and it’s strong emotions like @zic ‘s about the value of realizing this equalizing measure to address one of the fundamental unjust inequalities among people – the reproductive burden – regardless of whether all the structural ducks are in a row (i.e., a conviction that’s it’s worthy to realize this measure this even if it would be procedurally preferable to realize it by severing the link between employment and health insurance, or having government provide contraception services – that the political impediments to those reforms don;t justify further delay of this measure for justice) that make people indignant on the other side. It’s simply a clash of passionately held values. There’s no logical resolution to what’s right.Report

      • Avatar James Hanley in reply to zic says:

        Drew,

        None of that matters in the “misappropriating conscience” argument. If refusal to provide contraceptives misappropriates a woman’s conscience, then what distinction justifies refusal in some cases and not in other cases?

        Part of what bothers me in the arguments that have been presented by our OP author is that she makes absolutist statements like that, that suggest no limit, but has not insisted that sole proprietorships or non-profits should also be required to provide. But their refusal must equally be a misappropriation of conscience, so she needs to provide a justification for distinguishing those others, and none is forthcoming.

        Likewise, she has explicitly said it’s ok to refuse to fund an abortion, but the conscience with which she is concerned here is the women’s control over her own reproduction, which may require abortion. And yet she provides no justification by which refusing to provide contraceptives is a misappropriation of conscience but refusal to provide abortion is not.

        Increasingly I’m persuaded that the only real issue of the HL case, the point on which everything revolves, is whether the acts of the business are the acts of the owners, as in a sole proprietorship, or whether the acts of the business are not the acts of the owner, as in a publicly traded corporation. Because nobody–except our staunchest libertarians here–is arguing that a GM or GE could claim a conscience exception to the law requiring contraceptive coverage, but likewise nobody–so far, not even our staunchest critics of the HL decision–is arguing the law should apply to Hanley’s Hot Dog Heaven sole proprietorship.

        That suggests the issue is not actually about misappropriation of conscience, but anger that HL’s curious closely held status was defined by the Court as more like sole proprietorship than like a publicly traded corporation, which is really anger about a pragmatic, rather than a moral, point. (I’m not critiquing the legitimacy of that pragmatic anger, mind.)

        But even that doesn’t really get us a satisfactory resolution of the internal conflict, because so far none of the critics of the HL decision, nobody who sees it as a violation of women’s rights, a staking of a claim in their uteruses, a misappropriation of their conscience, has argued about, for example, Wheaton College that it shouldn’t be exempt from having to provide contraceptive coverage. Everyone’s angry that Wheaton doesn’t even want to fill out the form, but nobody here has said that Wheaton, and other religious non-profits, should fall under the law’s mandate to provide. From the misappropriation of conscience/controlling a woman’s uterus perspective, it’s not at all clear why their religious non-profit status should matter, because it’s the organization that does the providing, and we’re all agreed that an organization can’t have religious beliefs.

        If women’s access to reproductive care is a fundamental human right, and refusal to provide is a severe violation of that right, how do we justify these exceptions?Report

      • Avatar zic in reply to zic says:

        If women’s access to reproductive care is a fundamental human right, and refusal to provide is a severe violation of that right, how do we justify these exceptions?

        I don’t justify these exceptions; I am somewhat willing to tolerate them because I see this as an evolving process, which is exactly why I made my argument with the stories of my great-grandmother who died in child birth, my mother, a teenage mother who gave birth to two babies with fatal birth defects, and myself; an attempt to paint the changes that, finally, allow women to have full equality.

        My objection to HL is not their decision to not-pay for some contraceptives, but the legal groundwork it builds to limit that progress. I’m glad of the contraceptive mandate, but because it creates a basis for how to think about reproductive health care, not because it provides free contraceptives (it doesn’t, they are paid for via premiums, just like all other essential preventive care). I would have equally welcomed a mandate that contraceptives be covered, with a small co-pay. It’s the coverage of essential care here that matters.Report

      • Avatar James Hanley in reply to zic says:

        zic,
        I will read and consider your responses, but I will not respond and engage you for reasons that should be clear.Report

      • Avatar Michael Drew in reply to zic says:

        I’m not so much taking up for@zic‘s use of the phrase. (I actually might slightly adjust the use so as to make the conscience being misappropriated by Hobby Lobby Hobby Lobby’s own conscience (religious conscience), to the extent that it has one, as I think that’s part of what was going on in that suit – partly owing to precisely the issue of whether it can have one (a religious conscience).)
        I was more just trying to relate the discussion back to the actual stakes of the policy question. Because, while I’m on the fence about whether women’s consciences or merely their liberties are implicated when their employers refuse to obey a law meant to advance their equality, I’m fully with zic on the question of the policy in question here, where (positive) liberty is being advanced for women, and the consciences of their social superiors (employers) are standing in the way of that.

        I don’t fully disagree with you that the claim that omen’s consciences are being misappropriated is a distraction to that issue (largely because of the somewhat opaque jargoniness of that phrase IMO), but at the same time, I’m not clear that your claims to be with zic on so much of the rest of the piece really cash out. It may not be fully clear in the piece, but the material issue at hand here really is the contraceptive requirement in the employer mandate of the ACA, and the Hobby Lobby case about that. That’s the animating real-world fact behind this piece, and in point of fact if I am not mistaken you are not with zic on that issue. Maybe you’ve changed you mind, though. I’m just clarifying that point.Report

      • Avatar James Hanley in reply to zic says:

        I stand firmly by the conscience rights of religious individuals to not provide, except through general taxation (render unto Ceasar, Christians), and I would carve wide exceptions in the law for clearly religious organizations.

        So for me, the HL case came down to two questions. In a closely held corporation, do the acts of the corporation equate to acts of the owners? There is general agreement that for a sole proprietorship they do, but that for a publicly traded corporation they don’t. Closely held corporations straddle that line sufficiently that when our local lawyers wrote about the case they could not agree. I remain ambivalent.

        But the issue of corporate vs. owners/managers obviously cannot resolve the issue by itself, because we have the case of religious non-profits, which are not sole proprietorships, and which don’t, in the way HL does, have actual owners. So we ought to recognize a greater distinction between the actions of the corporation and those running it. And yet we give them a pass. So the religious purpose of an organization comes into play as well.

        So our second question is whether HL exists for a religious purpose. Having spent more time in their stores than I would like to have spent, it’s clear to me that their purpose is to sell crafts and knickknacks. So in the matter of HL, to me it devolves back to the issue of how we understand a closely held corporation.

        The other business involved in the case, which always conveniently gets overlooked, was a closely held Christian bookstore company. On the closely held part, the uncertainty remains. On the religious aspect, I’d argue their purpose is clearly to promote and support religion. So they get more support from me than HL, which–because of my ambivalence about the closely held corporation bit–I remain ambivalent about.

        But, and this but is crucial. My uncertainty–not even real disagreement with zic, just uncertainty–is limited to closely held corporations, not to the application of the mandate to publicly traded corporations.

        If you want to interpret that as not actually being predominantly in agreement with zic about the ACA mandate–which she also does not insist upon applying to sole proprietorships and non-profits–I think you’re way off base.Report

      • Avatar Michael Drew in reply to zic says:

        I didn’t realize you were so uncertain in your view on Hobby Lobby (but not Conestoga Woods), so I’m glad I asked.

        …On religious organizations, of course, wide exceptions were carved in the law for many clearly religious organizations, and then that cut was widened even more when that rule was interpreted more broadly than initially anticipated.

        So the issue is following what rule we would do this. Because to a large extent the government did it electively when crafting the ACA, just in view of the general value of religious liberty. But because they drew a line someplace (churches didn’t have to provide contraceptives but hospitalls and bookstors did; then hospitals didn’t) doesn’t mean they had to draw it someplace else; maybe they drew it in the right place? What the standard; what’s the authoritative source of the standard? The Hobby Lobby case, after all, didn’t even purport to be a First Amendment case, except inasmuch as the RFRA purports to be a restoration of previous First amendment doctrine – meaning it’s not what First Amendment doctrine currently requires.

        Separately, I remain unclear exactly what the interest against acting as though the organization has a religious conscience is that needs to be protected among publicly-traded corporations that perhaps doesn’t among closely-held corporations and apparently doesn’t among sole proprietorships. For the purpose of governance of the employer-employee relationship, if evidently not-for-religious-purpose G.E. were to decide tomorrow that it has a religious conscience, why shouldn’t it be able to apply that religious conscience to government regulations to itself like hobby Lobby now does, and like sole-proprietorships do? For me, the issue is that, at some point, your function as an employer becomes governable despite your religious conscience when you start to have an effect of a certain size on others. If a sole proprietorship ever had as many employees as G.E., I would want it to have to follow the same employment laws as G.E. regardless of the proprietor’s religious beliefs. And I’m okay with the dividing line being 50 employees.Report

      • Avatar James Hanley in reply to zic says:

        Nobody pretends the owners of GE are GE. The owners don’t even make the day to day operational decisions of the firm. Ownership of public stock is purely about profit–for god’s sake, that’s what all the lefties dislike about it! So I think the idea that there’s some kind of slippery slope that could lead to a GE being recognized as having a religious conscience is so silly as to range into the territory of paranoid conspiracy theorizing. Seriously.

        In a closely held corporation like HL, the owners are running the business and making day to day operational decisions. That’s what gives plausibility to the claim that the business action is the owner’s action.

        (Plausibility, I note, is only plausibility.)Report

      • Avatar Will Truman in reply to zic says:

        @james-hanley What about the “substantial burden” argument with HL? That HL isn’t being forced to do anything, they just don’t get tax benefits that the government reserves for those who supply health insurance that meets certain standards?

        That, to me, is the strongest anti-HL argument and the one that has me leaning somewhat in that direction.

        I’d lean stronger if the “tax benefits” didn’t include “a tax we just invented for this purpose, but the tax at least seems to me to be modest.

        I can’t go all the way and say “The government can invent whatever taxes it wants to because it has the power of taxation” because that could be used to circumvent all sorts of constitutional protections. The million dollar abortion tax, for example. So there are obviously limits. I could be convinced that $2000 is a sufficient hardship, but am not so convinced. (note: please @tag me because I am going to be in and out all day and won’t be keeping up.)Report

      • Avatar James Hanley in reply to zic says:

        @will-truman

        I actually addressed this yesterday. A serious argument can be made that denying a benefit unless a party violates their religious beliefs can be read as a violation of their religious freedom.

        Nobody can deny that unless they are willing to say that the Court was clearly right in Employment Division v. Smith and clearly wrong in Sherbert v. Verner. Smith was denied unemployment benefits because he smoked peyote, a religious sacrament in his church, and Sherbert was denied unemployment benefits because she got fired from her job for refusing to work on the Sabbath.

        So when people say HL was only being asked to follow a generally applicable law, and they both want to not follow one part of that law and not have to pay a penalty for doing so, I think, yes, that’s a lot like Smith and Sherbert.

        Can the cases be distinguished in a way that sets HL apart from Smith and Sherbert? I’m sure an intelligent legal argument can be made to that effect. But the distinctions are going to be fine enough that they’ll refute the easy mockery of HL not wanting to lose its tax benefit.

        I think that would be a lot clearer if we were dealing with a sole proprietorship. I think the fact that HL is a corporation with stock is clouding that other issue, even though they’re actually separate issues.Report

      • Avatar Mike Schilling in reply to zic says:

        Nobody pretends the owners of GE are GE.

        Except the Roberts Court, in Citizens United.Report

      • Avatar Michael Drew in reply to zic says:

        Okay, let me come at this from a different angle. What does ownership have to do with it? Someone makes decisions for G.E. I’m not saying it’s a slippery slope or likely to be recognized. But if the people who make decisions & run the business for G.E. (who conceivably at some point n time could come to be dominated by religious believes as sincere as the HL folks) were to decide that it’s a corporation that has a religious conscience (that claim about Hobby Lobby being an issue of contention in that case), why/how would they be wrong in principle that it is – or even to think that it could be?

        Part of it is that I don’t know what the salient features of a publicly-traded corporation as vice of a closely-held corporation (the latter at erm I’d never heard until the HL litigation started) are for these purposes. I guess really that’s what I’m asking.Report

      • Avatar Michael Drew in reply to zic says:

        …And to be clear, when I ask, “what does ownership have to do with it?” I think that’s related to my earlier question about what interest within the organization is being protected by the fact that apparently publicly-traded corporations can’t declare themselves to have religious consciences, but I’m looking for someone who knows these forms and arguments much better than I do to spell it out. What’s necessary in order for a corporation (not just some people within it) to have a religious conscience? Can a publicly traded corporation not have that by definition? Or it just won’t ever have it in the event inevitably because of the nature of its composition?Report

      • Avatar James Hanley in reply to zic says:

        Schilling,
        Your rhetorical bon mots that you seem to think are self-evident and not in need of an actual supporting argument are, as always, most mildly amusing.

        Michael,
        The owners of GE are stockholders, not the managers. If the managers hold stock, they are also owners, but not “the” owners. So those who determine the actions the company take cannot be confused with “the” owners. To put it another way, the managers can make management decisions that conflict with the owners’ (or some of the owners’) wishes.

        In a sole proprietorship, “the” owner is “the” decision-maker. There is no stock, no distributed ownership, no distinction at all between ownership and management. The manager cannot make management decisions that conflict with the owner’s wishes, because they are one and the same person.

        Closely held corporations have stock, but it is in the hands of a very limited number of people, all of whom generally are involved in hands-on management of the company. There is a legal/technical distinction between ownership and management, but for day-to-day purposes of running the company it may not be a meaningful difference. Generally, the management cannot not make management decisions that conflict with the owners’ wishes because the owners and the managers are the same persons. But unlike the sole proprietorship,where owner/manager is legally/technically the same role, in a closely held corporation, because there is stock ownership, owners/managers are legally/technically different roles.

        So closely held corporations are in some ways more like a sole proprietorship, and in some ways more like a publicly traded corporation. Which one are they more like for purposes of a law like ACA? I don’t think we can truthfully say there is an objectively right answer to that. There is not a logic that inexorably leads us to one conclusion or the other.

        I think the anger in this case comes from the Court majority following the logic to one conclusion, while the angry folks followed it to the other conclusion. They (rightly, I think) complain that the Court went that direction as a political choice, not a legally dictated choice, but they of course also went in their direction as a political choice, not a legally dictated choice.

        This particular conflict, I think, depends wholly, absolutely, on the ambiguous nature of the closely-held corporation.Report

      • Avatar Michael Drew in reply to zic says:

        But I ask again, what (exactly) does ownership have to do with it?

        If the Hobby Lobby people can declare that the corporation has a religious conscience because they are the people involved in managing and running the company and making its decisions (including the decision to make that claim), then why can’t the people who manage and run and make decisions for GE declare that the GE corporation has a religious conscience? Clearly because of some interests of owners who would not be in agreement. Yes? No? Kind of? What? I’m looking to have that interest spelled out – how it relates to the interests of owners like the Greens. And what it is about closely held corporations that mitigates that interest. Is it assumed that among owners of closely held corporations there is never dissent on such questions? Or what?

        I realize that this can’t ever be established as the right logic, or that it’s clearly justified. I’m just trying to find out what the specific contours of the logic (whether it’s right or wrong) actually are.Report

      • Avatar James Hanley in reply to zic says:

        I answered. Spend some time trying to work it through now.Report

      • Avatar Michael Drew in reply to zic says:

        I don’t think you answered my primary question very muchly, which is why I restated and clarified it. Also, I don’t think you’re as knowledgeable about this as you seem to act like you are (I don’t know how knowledgeable about it you really think you are). From the beginning, I meant the question to be an open question even though it was posed in a conversation with you. So just because you’ve given an answer doesn’t mean I just have to be quiet and think about what you’ve said. I don’t think you’ve actually responded to my primary question very well. A this point I’d be interested to hear someone even more knowledgeable on this topic than you respond to it.Report

    • Avatar Francis in reply to James Hanley says:

      It just asked, and was allowed, to not directly participate in the provision of those contraceptives.

      and still receive a tax break! Such a neat trick, casting the HL case as purely a defense against an overreaching government, when actually HL was actually seeking a substantial benefit.Report

      • Avatar James Hanley in reply to Francis says:

        Being a lawyer, you know the flip side to that, of course.

        But even taking that perspective on it doesn’t rebut the core of my argument, which is the rhetorical dishonesty of the “misappropriation of conscience claim.”Report

      • Avatar DavidTC in reply to Francis says:

        That’s the actual absurd part of the Hobby Lobby decision that no one wants to talk about:

        Hobby Lobby sued to get a *tax deduction* that they were not eligible for, because they assert that doing what tax deduction requires is in violation of their religious conscience.

        You know what’s a violation of my religion conscience? Donating money to the Church of Satan, or Catholic Church, or insert whatever religion you don’t like that.

        So I won’t do it. But I DEMAND A TAX DEDUCTION FOR IT ANYWAY.

        I think this is a slam dunk. Under the RFRA, all I really have to do is show that the federal government can accomplish their goals in some other way. Well, I’m not sure what their goal is with that tax deduction, but I think it is to get that religious institution money…so obviously the government could just give *me* the tax deduction, but donate the money *themselves*. (Which is, basically, what they did in the Hobby Lobby case.)Report

      • Avatar KatherineMW in reply to Francis says:

        David – Yes, that’s what I find preposterous about the Hobby Lobby decision. The right to freedom of religion is one thing. The idea that businesses have a right to certain tax breaks, even if they don’t fulfill the obligations upon which the tax breaks are contingent, is nonsensical.Report

      • Avatar James Hanley in reply to Francis says:

        The argument I was hinting at to Francis is that if the tax break is contingent upon violating one’s religious beliefs, the refusal to allow the tax break can be understood as a penalty on religious belief, in violation of the Free Exercise clause.

        I’m not saying, David and Katherine, that you have to agree with that. I am saying that it’s a serious legal argument. Although the cases are not exactly the same, anyone who thinks the Court erred in Employment Division v. Smith can’t really be too readily dismissive of the argument, imo. Or going back further, if you think it was wrong of the state of South Carolina to deny Adele Sherbert unemployment benefits because she, a Seventh Day Adventist, was fired for refusing to work on Saturdays, you can’t be too readily dismissive of the argument.

        Not that disapproving those requires one to agree with the HL decision. Distinctions can be made, and although fine, fine distinctions are indisputably the nature of the law. I’m only saying that treating the HL position on tax breaks as wholly ridiculous doesn’t fit well with taking Sherbert’s and Smith’s claims seriously.Report

    • Avatar LWA in reply to James Hanley says:

      I think posts like this illustrate the difficulty in how we discuss gender-specific issues. Particularly, how we struggle to frame contraception and reproductive care in terms of metaphors and similes, saying its like this or like that.
      It isn’t “like” anything.
      All the other topics where rights come into play- property, contract, faith, behavior- aren’t anything similar to having a single cell of your body grow into a whole other person.

      The standard language about a woman’s body doesn’t really capture that dynamic- it assumes that some magical event happens when labor starts, to change a fetus from a piece of property to a human being. At the other end, the idea that something equally magic happens the moment a sperm penetrates an egg, is just as ridiculous, and based on that same framing, of Property versus Individual rights.

      As I’ve mentioned before, framing everything in terms of inviolable rights becomes problematic, for this reason- as the terms are used in our political world, inviolable (or inalienable, as jr points out) doesn’t allow for the nuance of when these rights can be modified, hedged, bounded, or discarded, depending on circumstance.

      Overall I am in agreement with zic that access to contraception, of placing control of that squarely in the hands of women themselves, is critical for advancing the goal of human dignity and the flourishing of the human spirit.
      I’m just not sure if shoehorning it into a dialogue developed for property is adequate.Report

    • I’m not so much taking up for @zic ‘s use of the phrase. (I actually might slightly adjust the use so as to make the conscience being misappropriated by Hobby Lobby Hobby Lobby’s own conscience (religious conscience), to the extent that it has one, as I think that’s part of what was going on in that suit – partly owing to precisely the issue of whether it can have one (a religious conscience).)

      I was more just trying to relate the discussion back to the actual stakes of the policy question. Because, while I’m on the fence about whether women’s consciences or merely their liberties are implicated when their employers refuse to obey a law meant to advance their equality, I’m fully with zic on the question of the policy in question here, where (positive) liberty is being advanced for women, and the consciences of their social superiors (employers) are standing in the way of that.

      I don’t fully disagree with you that the claim that omen’s consciences are being misappropriated is a distraction to that issue (largely because of the somewhat opaque jargoniness of that phrase IMO), but at the same time, I’m not clear that your claims to be with zic on so much of the rest of the piece really cash out. It may not be fully clear in the piece, but the material issue at hand here really is the contraceptive requirement in the employer mandate of the ACA, and the Hobby Lobby case about that. That’s the animating real-world fact behind this piece, and in point of fact if I am not mistaken you are not with zic on that issue. Maybe you’ve changed you mind, though. I’m just clarifying that point.Report

  11. Avatar Patrick says:

    @james-hanley

    If the Court winds up agreeing with Wheaton College’s lawsuit about filling out the form, does that change anything in your mind?Report

    • Avatar James Hanley in reply to Patrick says:

      You’ll need to unpack that for me, as I’m not seeing the connection.

      (For the record, I think Wheaton’s argument is silly.)Report

      • Avatar Patrick in reply to James Hanley says:

        If you whack enough moles, you get a collective consequence.

        Whacking any one individual mole may be justifiable. The collective consequence may not be.

        While I might have sympathy and some agreement for any one of the folks whacking any one of the individual moles, I may not have any agreement with the collective consequence.

        Indeed, a lot of my sympathy for the individual mole-whackers may turn out to be misplaced if in fact it’s just one person, trying to eventually get to the collective consequence.Report

      • Avatar James Hanley in reply to James Hanley says:

        OK, but are you asking if I’d retract all my arguments and agree with zic, or are you asking if I’d change my mind on any particular argument, and if so, which one do you think ought to be reconsidered?

        I guess my inability to make the connection here is an indicator I probably wouldn’t change my mind, but if you actually pitch me an argument about what a Wheaton win would mean for any or all of my arguments, I’ll give you a listen.

        (I will say, I think it would rather support my claim–which is not uniquely mine, but is just a point of general agreement with most folks here–that direct government provision would be a hell of a lot smarter option.)Report

      • Avatar Patrick in reply to James Hanley says:

        @james-hanley

        Well, as I mentioned on the Hobby Lobby thread, I think the religious argument is bunk, myself, as I don’t see any real effort on Hobby Lobby’s part to take any sort of religious view of their employee’s health insurance until the government told them that they had to provide it, and I don’t see them actually willing to pitch the case in court until some outside agitators convinced them to do so. So I see this largely as just (really objectionable for various reasons) political maneuvering dressed up as a rights case. Mark’s counterpoint that rejecting standing is problematic continues to strike me as a valid point, for the record.

        But okay. As we butted heads on the HL case I think we got to the point where you had a valid point (although you didn’t state it baldly in that particular subthread) that it didn’t really matter whether or not HL had an actual religious objection or not, because the question at hand as far as you were concerned was whether or not a closely-held corporation *could* be considered to have pass-through religious obligations, and we pretty much hacked away at that where I agreed, provisionally, assuming that those obligations were incorporated.

        Which I still think is the right way to go; I have no real objection to creating incorporated legal entities with duties other than profit making (or in addition to profit-making). I think you were on board with that, so as far as this particular case goes.

        So I think we already did our ten rounds over HL and came to what would be an acceptable solution to the two of us, anyway.

        But it does seem to me, in addition, that the Hobby Lobby case is one brick in the wall. What I see, right now, is a collection of cases in the pipeline, all coming from The Becket Fund for Religious Liberty, all riding off of RFRA (which is probably worthy of its own dissection, a conversation that we probably would have had already if Tom was still around, since he was big on deference, now that I think about it).

        This looks – to me – to fit exactly what @zic claims it is, a concerted attack to prevent the provision of birth control via PPACA, to make access to birth control as difficult as possible, and (I’ll guess the probable endgame, although this is admittedly conjecture on my part) to add birth control to Hyde.

        Now, since I don’t like PPACA in the first place (for other reasons originally, but this is turning out to be a better one not to like it, actually, so I’m adding it to the list), I’m hard pressed to say that legal hammering at what I think is a weak law isn’t a natural consequence of the law being weak.Report

      • Avatar James Hanley in reply to James Hanley says:

        I’m hard pressed to say that legal hammering at what I think is a weak law isn’t a natural consequence of the law being weak.

        I’m inclined to agree.

        it does seem to me, in addition, that the Hobby Lobby case is one brick in the wall

        Eh, there’s a slope, but is it slippery? The weakness of the law is inviting these attacks, but that doesn’t mean the attacks have real likelihood of success.

        Look at the Wheaton College case. The Court’s order allowing them to not submit the required form until their case can be heard was made in part because of the Court’s view that “[n]othing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives.” Now the Court may in fact be wrong about that, but it’s an important point that they believe it is correct. It indicates that the Court doesn’t want to let Wheaton’s request to opt out of submitting the form result in its employees not being able to obtain contraceptives from their insurance provider.

        But even if the Court rules in Wheaton’s favor, and that results in its employees not having their contraceptives paid for by the insurance provider, I don’t see what argument of mine that would provide a logical attack on. I’ve argued there’s a distinction between not helping and trying to obstruct. Wheaton, I’d argue, is crossing that line. That doesn’t mean the argument that there such a distinction is invalid–it just means I distinguish between HL’s and Wheaton’s actions.

        I guess this is where I’m stuck. I’m not sure you’re referring to any of my specific arguments, so I’m not sure which one I’m supposed to be reconsidering. It seems more of a generalized “wouldn’t you be more concerned then” approach, then, sure, a little bit. If that’s what you’re asking, which is still unclear to me.Report

  12. Avatar j r says:

    I am not writing to HL as the whole problem, but as a symptom of a larger problem of denying women the basic human right of controlling their own reproduction, and thus, their freedom and destiny.

    You are right that this is a problem. And that is how I began my first comment, by agreeing with you. I only made a specific point about a specific section of your post, pointing out that speaking about access to health services in terms of inalienable rights is simply not accurate to what the term “inalienable” means. The fact is that women can very easily be alienated from access to reproductive health. And that may seem pedantic at first, but what it means is that we need to come up with a different way of speaking about this and a different way of making the case for universally provided social services.

    @zic and @margaret-nolan, you are both right. It’s not fair that Hobby Lobby can effectively make these sorts of arbitrary decisions about who gets what health coverage in a manner that negatively effects their female employees. I happen to believe that the Hobby Lobby decision was wrong. Further, I happen to believe that the Green family’s objections to Obamacare were primarily political and not particularly religious at all.

    Here is the thing: Hobby Lobby’s ability to make these decisions is a direct result of the ACA. Without the employer mandate, the Hobby Lobby has almost no leverage with which to involve themselves in their employee’s health care decisions. Further, the employer mandate is literally what allowed the Greens to gain any legal standing to challenge the law in the first place.

    You cannot have it both ways. You can’t enforce a positive obligation on other people to secure the set of rights and entitlements that you value while simultaneously disregarding the rights that other people value. The extent to which you try to compel other people to actively contribute to the world that you want to create is the extent to which those other people will push back and try to compel you towards the world that they want to create. Sometimes that process leads to a net positive for everyone involved and sometimes that process leads to culture war. Liberal democracy is a truce; it is not unconditional victory.Report

    • Avatar zic in reply to j r says:

      Here is the thing: Hobby Lobby’s ability to make these decisions is a direct result of the ACA. Without the employer mandate, the Hobby Lobby has almost no leverage with which to involve themselves in their employee’s health care decisions. Further, the employer mandate is literally what allowed the Greens to gain any legal standing to challenge the law in the first place.

      And without ACA, in nearly half of the states in this country, maternity care — pregnancy and child-birth care — were not covered. Like this is not the single most common health-care need most women have. Or breast-cancer screening. Before ACA, women were routinely discriminated against in health insurance; their basic needs routinely overlooked and so paid for by women, out-of-pocket.

      You can take this stuff for granted and see it as a not-my-problem; women cannot; without legislation, the world puts us second.Report

      • Avatar j r in reply to zic says:

        I have to cosign with @james-hanley above. I am trying my best to agree with you that working towards universal access to health care services is something that we ought to do and something that I am fine using tax money to accomplish. And yet, you keep accusing me of saying things that I am most definitely not saying and assigning motives that I assure you that I do not hold.

        Above you accused James of wanting to build an ugly world, because he pointed out that other people have a different set of priorities that weigh on their conscience. And yet, the world that you want to build is the one in which your priorities matter more than everyone else’s and anyone who disagrees with you must be evil.Report

      • Avatar Lyle in reply to zic says:

        But progress was made over the 50 years before the ACA. When I went to work for a mega oil company in 1976 pregnancy was only 50 % covered due to the idea that it was in some sense voluntary. Of course that went to 100% in the 1980s.Report

  13. Avatar James Pearce says:

    Great post, Zic. Too bad the same old folks let themselves get easily distracted by the “who pays” stuff.Report

    • Avatar North in reply to James Pearce says:

      Positive rights are hard. Negative rights are easy. Just assume a state of nature; if you were alone on an island you’d be able to walk wherever you wished to go, you’d be free to say what ever you wished to, you’d be free to remain alive. The natural state of a person is to move about unencumbered by others, to speak unrestricted by others, to live out their natural span so it’s easy to enumerate rights based on that. It’s desirable to say that a society should at least be able to match, within reason, the state of affairs of solitude. All negative rights impose on others is negative obligations. I’m obliged to not restrict your movement, your speech, your heath- those are things most people aren’t inclined to necessarily do anyhow, the obligations are mild.

      Positive rights though, it’s harder to conceptualize. In a state of nature when you’re alone it’s difficult to say you have a right to food because unless you provide it yourself then you’re not gonna get it. Same with shelter or medical care. Positive rights imply positive obligations. Who is responsible for feeding you? Sheltering you? Providing medical care? Are we enslaved to each other by these obligations? The implications are quite crushing.Report

      • Avatar Chris in reply to North says:

        Negative rights are easy. Just assume a state of nature; if you were alone on an island you’d be able to walk wherever you wished to go, you’d be free to say what ever you wished to, you’d be free to remain alive. The natural state of a person is to move about unencumbered by others, to speak unrestricted by others, to live out their natural span so it’s easy to enumerate rights based on that.

        There’s a whole series of informal fallacies for this. The state of nature is toil and suffering and struggle to survive. Should these be negative rights, in that we shouldn’t try to alleviate them, because they’re natural?

        No, of course not, but alleviating them — which is in large part the purpose of society and civilization — requires, to some extent, what would likely be considered positive rights.

        This highlights the problem with the negative-positive distinction, and rights talk in general: their positivity and the negativity are relative to a frame, and any frame is embedded within a sociopolitical and sociocultural context. In fact, rights are so embedded period, and the moment we attempt to justify them through an appeal to something outside of the structures within which they exist, the justifications quickly become nakedly tendentious.

        In the end, we have values, and we promote “rights,” or duties, freedoms, or whatever other conceptual structures we want to use to interpret and shape our social world, to the extent that they serve those values. And we embed those conceptual structures within the our hierarchy of values.

        In this case, what we, or at least what many of us value at a very high level in our hierarchy of values is the status of women as full and equal citizens, and one of the freedoms most necessary to realize that value is the woman’s freedom to choose if and when she has children. And that value is best served by relatively unfettered access to the means by which a woman can choose if and when to have children, which includes both abortion and contraception. For us, then, it is not merely in the interest of society to make those available as best it can, it is in service of one of the primary purposes of society that it should do so. In other words, for many of us the status of this value, its position in the hierarchy, means that society should, at least where individuals are unable to do so themselves, help to provide such things. In our system there are many tools available to society through which it can fulfill this obligation, one of which is by insuring equal access to the necessary health care under existing insurance regimes.

        Others, of course, place other values before the full and equal status of women as members of society, the realization of which, again, requires reproductive freedom, which requires access to contraception and abortion. For example, some here see what they interpret as coercion in the form of, say, pooling resources through insurance, or subsidizing women’s health care, as a violation of a value they place above the full and equal status of women as members of society. Others here see the life of the fetus or potential fetuses, or the potential harm to sexual mores, as greater values than the full and equal status as women as members of society, and seek to restrict access to contraception and abortion. And so on.

        None of these values is any more “natural” than the others, at least not in the sense that they can be gleaned from the “statue of nature,” nor are the “rights,” “duties,” “freedoms,” etc. that emerge from and promote them. They are more or less rational structures built, again, in sociopolitical and sociocultural contexts. These contexts further embedded in nature, of course, but there is no a priori reason for treating nature independently, or as having a sort of ethical priority over the other contexts.Report

      • Avatar Chris in reply to North says:

        Ouch, that was kin of wordy, sorry. I’ll just summarize it like this:

        The distinction between positive and negative rights? Bleh. In fact, rights period, bleh.Report

      • Avatar James Hanley in reply to North says:

        In fact, rights period, bleh.

        Women have a right to legal, political, and social equality with men.

        Bleh or not bleh?

        (Serious question–I’m trying to figure out, without prejudice, where this takes us.)Report

      • Avatar Chris in reply to North says:

        If we do away with rights talk, then in a sense no one has a right to anything. So the answer would be bleh.

        Now, if we’re going to talk about rights as a useful conceptualization of one of the sorts of obligations, or more generally behaviors, that promote values in the sorts of contexts I mentioned, then I’ll say it’s one of the first, most fundamental, and most important rights. But I’d rather not. I’d rather talk about the values that underlie it, and the sorts of things that we can do to promote those values. So I’d formulate it thusly: women should have legal, political, and social equality with men. That’s my value; that’s a value I hope the society in which I reside will share, collectively. It’s a value important enough to me that I think a social or political system that doesn’t share and actively promote it is illegitimate.

        In short, Texas is illegitimate.Report

      • Avatar Francis in reply to North says:

        I have always found this distinction to be troubling. While I’m no legal historian, distant memories of property class inform me that some of the oldest ‘rights’ recognized are property rights, i.e. the right to exclude, and, just as importantly, the right to go to court and have the King uphold your right to exclude.

        Looking around the world, it seems to me that the system of property rights that the US inherited from England and developed on its own has been a tremendous engine for economic development. So to be clear, I think that property rights in (for example) both land and water are a good idea.

        But when some of the oldest systems of rights – that affect our thinking even today in such odd areas as intellectual property — are positive rights, I think that the dismissive approach taken towards positive rights is a mistake.

        Society is about shared burdens and benefits. ‘Rights’ are just those benefits that the judiciary won’t permit the executive to ignore. Health care isn’t, today, a right under US law. But I certainly encourage my fellow liberals to try to make it one.Report

      • Avatar KatherineMW in reply to North says:

        Fantastic point, Francis. The right for the government to keep people from using land that you say is “yours” is a positive right, and one of the ones most valued by libertarians who claim they don’t believe in positive rights.Report

      • Avatar James Hanley in reply to North says:

        So I’d formulate it thusly: women should have legal, political, and social equality with men. That’s my value; that’s a value I hope the society in which I reside will share, collectively.

        Without trying to squeeze you into a corner, or even expect you to feel obligated to answer, I wonder what effect this would have in our current political/legal system, whether abandoning the talk of rights and focusing instead on values–and assuming that we can not only have conflicting rights claims but conflicting values claims–functions in our system. That is, whether we’re structured so as to allow an authoritative resolution of conflicting values claims. Or whether it might require a wholesale restructuring of our social/political/legal system (which you, of course, might be more open to than I am). And I don’t mean that as a criticism, but just as a “ponder point.”

        In short, Texas is illegitimate.
        Well, you and I share that value for sure.Report

      • Avatar James Hanley in reply to North says:

        I think it can be argued that the positive right to have government protect our property from invasion is the same thing as the positive right to have government protect our bodies from invasion, and is necessary to make negative rights secure. That is, it’s a bit of an oddity, a “necessary evil” so to speak (without seriously meaning “evil”), that has a clear and limited purpose directly attached to negative rights.

        From that perspective, a fair question–following the classic common law tradition of reasoning by analogy–would be whether other positive rights also have the purpose of being necessary to secure positive rights. I won’t assert that such arguments can’t be made, but I do suspect they require a little more effort than the positive right to have government protect your body and property from invasion (where “more effort” is not intended to imply “thereby necessarily suspect”).Report

      • Avatar DavidTC in reply to North says:

        @chris
        None of these values is any more “natural” than the others, at least not in the sense that they can be gleaned from the “statue of nature,” nor are the “rights,” “duties,” “freedoms,” etc. that emerge from and promote them. They are more or less rational structures built, again, in sociopolitical and sociocultural contexts. These contexts further embedded in nature, of course, but there is no a priori reason for treating nature independently, or as having a sort of ethical priority over the other

        Exactly. People try to extrapolate ‘natural rights’ to be ‘whatever a human, alone in nature, could do’, but that’s really complete nonsense. Not just because such a thing does not actually exist, but because such a thing is bullcrap…someone in alone doesn’t have a ‘right’ to be left alone, it’s just that no one has an ability to meddle with them. That’s not a ‘right’. It’s like asserting that people have a natural right to not fly.

        Or, and here’s an interesting concept, by the same logic: When left entirely alone in nature, women *have a right to not get pregnant*, in exactly the same way, as there’s no one around to make them them pregnant.

        Somehow, ‘complete and free birth control’ never seems to make the list of ‘natural rights’. Likewise, neither does the right to sleep anywhere they want, or eat anything they want. Or detonate nuclear weapons wherever they want.(1)

        Any time anyone starts claiming ‘this is how it works in nature’, be it natural rights, or natural law, or anything, they are basically spouting complete nonsense. People are able to do *anything* humanly possible when they are alone in nature, so if we consider that, logic demands that we treat *all* actions as a natural right, that everyone has the right to do whatever they want, unimpeded by anyone else…which is obvious nonsense and literally impossible.

        And the second someone else shows up and interacts with them, it’s pretty clear from history that what those two people consider ‘normal’ interaction is almost completely created by society.

        1) They probably can’t make a nuclear weapon, but they certainly can’t make a TV, and yet somehow people are considered to have a natural right not to have their TV stolen.

        In the end, we have values, and we promote “rights,” or duties, freedoms, or whatever other conceptual structures we want to use to interpret and shape our social world, to the extent that they serve those values. And we embed those conceptual structures within the our hierarchy of values.

        People wrongly often claim that the US has no mandatory beliefs, or wrongly claim such a belief in God as one. But the US does, sorta, have a religion:

        ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’

        That sentence…is a lie. But it’s a lie that, I would argue, *all Americans are supposed to believe*. That, right there, is conceptual structure we’re supposed to work within, *even though we invented it ourselves*.Report

      • Avatar KatherineMW in reply to North says:

        James – I don’t understand the basis of your argument. What “negative right” is the government enforcing by keeping people off land that you claim is “yours”?Report

      • Avatar Chris in reply to North says:

        Without intending to give a history lesson, which I know would be unnecessary, but merely to situate what I’m saying in an historical context, the concept of universal rights as we conceive them came out of a reaction to the concept of rights as traditionally conceived, which was as a concept applied within in a hierarchy of individuals or classes. In a sense, rights were rights over: the rights of the king, the rights of citizen over slave, the rights of overlord over vassal, vassal over peasant, and so on. At the very least, rights were something relative to one’s position in society. Enlightenment thinkers turned rights back on their promoters, and being the sorts of person attracted to the radical, I’d have been like, “hell yeah, universal rights!” at the time.

        But the highest values devalue themselves, as a wise German once said, and what was once a creative reappopriation of ossified social structures has itself become ossified, a way to maintain existing power structures. We can’t do more to help the poor, because it would trample on the rights of the non-poor. We can’t do more to promote racial equality, because it would trample on the rights of white people. We can’t do more to help women achieve economic equality, which in our system is the same as social and political equality, because it tramples on the rights of conservative Christians. Rights are used as a means for the maintenance of existing social orders, just as they were before the Enlightenment thinkers turned them on their heads.

        There are less radical ways to undermine the importance of universal rights. I’ve probably linked to this paper by Iris Marion Young a dozen times on this site, so make it a baker’s dozen. In it she calls for a concept of full citizenship, rather than universal citizenship (which leads to something like special rights for some people — she still talks in the language of rights, of course).

        In the here and now, I’m mostly talking about changing the way we talk about these things, to change the way we think about them and free ourselves from some of that ossification, but of course, my ultimate goal would be for a move towards a more participatory democracy.

        But I don’t want to derail the comment thread of Zic’s excellent post with my ramblings about my crazy political ideas (he says right as he finally says something about his political views). I have a week or so without the teenager and with R. still in Nuevo York, so I’m hoping I can finish organizing that incredibly long work post (now a couple months late) into a series. I was also thinking that, perhaps after I get some of those out, we (you, James, and I) could maybe do a sort of dialogue, since the two of us have very different ideas, but unlike some of us on the left, and some of ya’ll on the [whatever relative direction libertarians are supposed to be on], have a mutual respect, it might be kind of fun.Report

      • Avatar James Hanley in reply to North says:

        Katherine,

        As traditionally understood, the right to not have the fruits of your labor taken from you, e.g, the right against theft. Also, to some extent, the right to just be left alone.Report

      • Avatar LWA (Liberal With Attitude) in reply to North says:

        I find this “state of nature” framing to be especially unpersuasive.

        Our natural state is to be alone, independent, free of connections not of our choosing?

        I would ask this, to everyone here at this blog- when you look out over the landscape of human society, at all of human history, does that sound credible?

        Or is it more credible that our most natural state, where we find our truest self, to be enmeshed in family, clan, tribe and nation?Report

      • Avatar James Hanley in reply to North says:

        Empirically, it’s totally not credible. Mostly it’s meant as thought experiment starting point for theory, not as an empirical claim. But it’s been heavily criticized for it’s artificialness.

        But it’s worth understanding what it was a reaction to. A traditional conservative political theory emphasized the centrality of the collective society, and individuals were merely components within it. Their fixed and unchangeable position, and their duty to the whole as a member of their fixed and unchangeable position was emphasized. Using the artifice of state of nature theory was a means of shifting the focus so as to break down the idea that individuals were pre-ordained to particular social classes, and to give them rights, to grant them individual social meaning as opposed to just being a tool for society to use. (This is all perfectly consonant with what Chris said about right.)

        That doesn’t keep the state of nature from being an artifice, and empirically non-sensical. But it gives us perspective to see the value the concept served.Report

      • Avatar KatherineMW in reply to North says:

        But land isn’t inherently “the fruit of your labour”. It’s just land; you haven’t created it. There are many civilizations that existed without the concept that land could be permanently owned. The idea that some portion of it is “yours”, and other people aren’t allowed to go on it or use it, is socially and culturally constructed. You could as easily – or more easily – say that every person inherently has freedom of movement, and stopping them from going wherever they want is a violation of that right.

        Furthermore, If you go far enough back in history, most ownership of land is based on “I fought the people who lived here, and I won, and I say it’s mine and have the force of arms to keep other people off it”. There’s certainly an absence of historical evidence that the right to ownership of land is based on being entitled to retain the product of one’s labour, since for much of human history the people who worked the land were slaves, or serfs, or peasants, or sharecroppers, who performed the agricultural labour but whose land was “owned” by someone else. Much of the property ownership existing in the world throughout history, and virtually all the property ownership of aristocrats, has derived from people having “the fruits of their labour taken from them”.Report

      • Avatar North in reply to North says:

        Well I remain skeptical of positive rights in general and generally think that declaring something a positive right typically generates more heat than light.

        Histories political monsters are reviled for denying large numbers of people their negative rights, robbing them, imprisoning them and killing them en masse. If we grant positive rights then is not every person on the planet then rendered on the same moral level as those monsters by virtue of the existence of suffering? If not then why not? If one has the positive obligation to feed the hungry equal in weight and force to the negative obligation to not imprison the free then have we not condemned the entire species? If everything is a right then isn’t nothing one?Report

      • Avatar North in reply to North says:

        I see your point Katherine. The negative right to retain your property could, I suppose, be rewritten as the positive right to prevent the needy from taking your surplus property.Report

      • Avatar KatherineMW in reply to North says:

        As I understand our discussion, “negative rights” bar governments from doing certain things to you, while “positive rights” impose an obligation on the government.

        Personal integrity is the most basic “positive right”, on the basis that a government has an obligation to defend its people from harm. But the basic right of not being harmed by others is something that we can envision as a negative right in the absence of a state: the right to defend yourself against harm.

        The “right to property” is a positive right to have the government prevent people from taking the things which you consider “yours”. Government also decides how we determine that something is a person’s property. The concept of property cannot exist absent the existence of some kind of state or government, therefore it cannot be a negative right. The concept of territory can – even animals have territory – but there’s no right to territory; one maintains control over it though the use of force.Report

      • Avatar LWA (Liberal With Attitude) in reply to North says:

        @james-hanley
        I agree, actually, that the thought experiment of “What if I had an independent self, outside my clan and social position” has merit, as both you and Chris described.
        Which is also why its counterproductive to reduce our essential nature to one thing, like a free individual, or Borg-like component of the collective.

        Because we have conflicting desires, which interplay off each other. We desire to belong to the collective, yet we desire to be a special unique part of it; we demand inclusion in the group, but mostly to groups that exclude others.

        We want to be left alone, but only within a protected sphere where others are coerced into providing us protection.

        @katherinemw
        I am thinking of the concept of land in social justice teaching, where no one actually owns the land, but we do have ownership rights over the fruits of our labor. The theory is that God provides the land, and the combination of that land and our labor produces the abundance that both fills our physical needs and provides fulfillment, in that we become co-creators with God in the physical environment.

        When seen in this light, the central role of property rights, that of excluding others from claimed land, becomes problematic- Asserting that people have a right to own land, implies a “positive right”, that land ownership should be as widely distributed as possible; in this view, hoarding land is an act of theft from those who have none.Report

      • Avatar James Hanley in reply to North says:

        katherine,
        But land isn’t inherently “the fruit of your labour”. It’s just land; you haven’t created it.

        But in this conception you have done something with it, have “mixed your labor” with it.

        The concept of property cannot exist absent the existence of some kind of state or government, therefore it cannot be a negative right.

        I don’t think that follows. You’re over-relying on the distinction between “territory” and “property.” Assuming a state of nature, where you and I have moved into territory not previously held by others, I could defend my territory against your incursions as much as I might defend my body against your incursioms upon it. When we create Leviathan, we task it with protecting us as we protected ourselves. We codify both, but that does not thereby transfer them into positive rights themselves, even if the right to call upon government for help is a positive right.Report

      • Avatar James Hanley in reply to North says:

        @lwa
        Which is also why its counterproductive to reduce our essential nature to one thing, like a free individual, or Borg-like component of the collective

        You know, if you’d write like this more often, we wouldn’t argue so much. But instead you usually sneer at every reference to the individual, and say, “but society…” Then you accuse me of drawing a hard distinction, even though I consistently talk about people working together and creating voluntary societies. By consistenly rejecting any references to individuals differing from, standing in principled disagreement to, and having rights against, their society, you do create an impression of borg likeness…society has agreed upon its values, you say, who are you, an individual, you sneer, to argue against that?

        Seriously, if you want to drop that talk and start taking individuals seriously as well as the collective, I’ll cheer heartily. The proof will be in whether you can actually put it into practice, though.Report

      • Avatar KatherineMW in reply to North says:

        From that perspective, a fair question–following the classic common law tradition of reasoning by analogy–would be whether other positive rights [in addition to the right to property] also have the purpose of being necessary to secure positive rights.

        There are some, which have better rationales than property rights. Let me set out my train of logic.

        You appear to accept that the government has an obligation to protect us from being harmed or killed by other people, whether domestic (criminals) or foreign (enemy armies). This is one of the basic theoretical rationales for why we have governments at all. This requires the government to expend money on policing and military forces.

        Therefore, if the government is obligated to protect our right to life, it is also obligated to protect us, insofar as it is able, from being harmed or killed by killed by starvation (right to food), exposure to the elements (right to clothing and shelter), or disease or injury (right to health care – as well as right to clean water).

        All of these concern our most basic right – to life – rather than our right to continue possessing objects we have claimed.

        And to answer North’s point about atrocities in history, deliberate government violations of these rights have been fully as monstrous as governments unjustly imprisoning or killing their citizens: for example, in British India the Great Famine of 1876-78 killed one-third of the population of Bengal – an estimated 5.5 million people – while the British colonial government simultaneously shipped 716 million pounds of wheat from India to England.Report

      • Avatar DavidTC in reply to North says:

        @james-hanley
        As traditionally understood, the right to not have the fruits of your labor taken from you, e.g, the right against theft. Also, to some extent, the right to just be left alone.

        As traditionally understood, that’s dumb. No one ‘naturally’ doesn’t have things they’ve made taken by force. (If that was true, we’d hardly need to make rules about it!) Nor is anyone ‘naturally’ just left alone.

        The only people who do _naturally_ have those things are people that exist in a universe without any other beings at all (And we’d have to include animals…animals can steal stuff too, and bother people), but *those people* can also do anything they want at all, so why is their ability to ‘not having stuff taken’ privileged? Why isn’t their ability to ‘eat any food they happen to see no matter where it is’ or ‘poison all the drinking water’ privileged also?

        Yes, the idea of ‘natural rights’ was created as a pushback against other, stupider, lies about rights. But I’m not entirely sure we need to keep fighting against the divine right of king anymore.

        That doesn’t keep the state of nature from being an artifice, and empirically non-sensical. But it gives us perspective to see the value the concept served.

        The problem is this one is still being used. Sure, people don’t talk about ‘natural rights’ that much, but we got, in this very discussion, to natural rights because North talking about ‘positive’ and ‘negative’ rights, which is also nonsense.

        Rights are already a goofy enough framework without people pretending that there are ‘positive’ and ‘negative’ ones based on a few hand-picked ‘natural rights’ that people would have if no one else existed (aka, things that would literally impossible to happen in that universe, which is not how ‘rights’ generally work), while ignoring all the other things a lone human could do that we don’t let people in society do, like shoot automatic weapons randomly whenever he felt like it.

        All rights are ‘positive’ rights (Or, rather, the concept of positive and negative makes no sense), because laws (Including the constitution) are not suggestions. All laws, including rights, require some sort of enforcement, which requires someone else(1) to do something. Property rights involve taxing(2) people and hiring police, a right to health care involves taxing people and hiring doctors, a right to free speech requires a court system paid to knock down laws infringing it, etc.

        This is such an obvious conclusion it’s a little hard to believe that anyone has ever taken the idea of ‘negative rights’ seriously. As every single instance of a negative right immediately requires some sort of positive right to truly exist, and every positive right can be rephrased as a negative right, it’s clear that people are just being silly with the entire concept. It’s like they’re insisting there’s such thing as powdered water…all you have to do is add water.

        1) It is possible to construct a framework in which everyone has to enforce their own rights, so no one else has to help, thus making all rights back to negative rights. Except, everyone enforcing their own rights hardly requires the concept of ‘rights’. That’s just normal anarchy. 😉

        2) Or whatever method the government uses to raise money, almost none of which are are going to be voluntary.Report

      • Avatar KatherineMW in reply to North says:

        James –

        In the deserted-island scenario, you’d have an extremely limited ability to defend your property – I could go on it and use it to fish, or pick coconuts, or plant seeds, or whatever, whenever you weren’t within visual range. Your “right to property” would be extremely limited.

        Moreover, it’s a culturally-specific way of looking at property. People of many cultures wouldn’t act that way if two of them were stranded on a deserted island. We’d both catch fish, and harvest shellfish, and collect coconuts, and plant seeds, etc. We might say “I caught this fish, it’s mine”, or “I collected these coconuts, they’re mine” – and it’s a lot easier to defend those simple items than to keep a person off of a large territory. We might have trade – I’m better at fishing, you’re better at collecting coconuts, so we trade them and each get more – but we wouldn’t necessarily say “I’m the only one allowed to use this area”. The idea of that isn’t something that’s inherent in all people.

        And in the third place – if we did divide the island into territories, how do we decide who gets how much? It’s based on strength: how much of the island each of us is capable of defending. If we both then choose to become part of a government (say, based on another, larger island), then does the government say “You each get half” or “You each get what you now control”? If it says the latter, that means the right to property is based on strength – if you’re strong enough to control more land than me, you get more. That would make it very different from the right to bodily integrity – you’re not allowed to kill me just because you’re stronger than I am.Report

      • Avatar Burt Likko in reply to North says:

        Property rights are positive rights? Not sure if I agree with that. I can see how one gets there — the police will remove a trespasser from my property, at no cost to me (in theory) so I get that I needn’t be out there with a gun defending my homestead 24/7. But that doesn’t make it a positive right, something the government has an obligation to see to it that I have. After all, if I call the police to remove the trespasser and they fail to fulfill my request, I have no remedy against the police whatsoever. If I had a positive right to governmental enforcement of my right to exclude the trespasser from my property, I’d have a remedy available were that right denied me.Report

      • Avatar James Hanley in reply to North says:

        @katherinemw

        Therefore, if the government is obligated to protect our right to life, it is also obligated to protect us, insofar as it is able, from being harmed or killed by killed by starvation (right to food), exposure to the elements (right to clothing and shelter), or disease or injury (right to health care – as well as right to clean water).

        You can make that argument, but the traditional liberal approach–the Hobbes/Locke line of thought–doesn’t require it. In that approach, we create government solely to protect ourselves from each other, not from the natural world. So we can bend the idea in that direction, but it’s not an intellectually necessary bend.

        @davidtc
        Any comment that starts off by dismissing the classic British liberal theorists as “dumb” is a comment I stop reading right there. They can be argued with, of course, but no intelligent argument can be expected to follow from that beginning.Report

      • Avatar North in reply to North says:

        My problem with this, Katherine, is that rights don’t just apply to government. When we say you have a right to bodily integrity then it’s individuals as well as governments who are considered immoral if they violate it. If we then embrace positive rights then every individual as well as every government on the planet is immoral as long as a single person suffers in need.Report

      • Avatar James Hanley in reply to North says:

        Moreover, it’s a culturally-specific way of looking at property. People of many cultures wouldn’t act that way if two of them were stranded on a deserted island.

        That’s irrelevant, because I’m not making a natural rights argument. I’m not saying “this is the only right way to do it.” Certainly it’s culturally specific,* but that doesn’t have much bearing on the negative/positive distinction.

        ____________________
        *Although I will say that too many people over-rely on this concept, in the sense of assuming that only western cultures have private property. For example, it’s very common to say that Native Americans didn’t have private property, but that ignores the amazing diversity of cultures among Native Americans, which dwarfed the diversity of culture found in Europe at the time. Nearly all–probably all–had private property of some sorts, and some clearly had private property in land, from exclusive hunting territories among the Iroquois to exclusive fishing territories among the Pacific Coast tribes to private farming plots among Cherokee and some of the Southwestern tribes. Not to say Katherine did this, but when people say “Native Americans didn’t have private property,” they don’t know what they’re talking about.

        That was a total aside, not bearing on Katherine’s argument. It’s just one of my bugaboos about what I would call the “romantic left.”Report

      • Avatar DavidTC in reply to North says:

        @james-hanley
        Ah, yes, you can call a philosophy ‘non-sensical’ and ‘totally not credibly’, and that’s fine, I call the same thing ‘dumb’, and this empowers you to completely dismiss my comment because you’re all offended that I insulted classic British liberal theorists.

        You do realize that me stating a philosophy is dumb is saying that it doesn’t work very well, whereas you stating it is nonsensical means it doesn’t even hold up to *basic logic*, right? Phlogiston theory is dumb, the idea that combustion is due to gamma rays emitted from Spam is nonsensical. Dumb means ‘that doesn’t work’, nonsensical means ‘that has no grounding in reality’.

        So I’m pretty sure it’s not *me* that’s insulting classic British liberal theorists. Or, more to the point, I’m pretty sure your objection to my post just a way to keep from having to respond to my point.

        Mainly because, you’re *very carefully* arguing using this completely artificial and discredited theory (Or, at least, the bastard child of natural rights theory, the idea that there are ‘negative rights’, which you basically need natural right theory to get to.), even after you’ve already said you don’t agree with it.

        So here’s my question, James: Do you think there are negative rights vs. positive rights? Not ‘what other people think’…do *you* believe that?

        If you don’t believe that distinction, why are you discussing them with other people as if they are real?

        If you *do* believe that, justify the difference *without* using natural rights.Report

      • Avatar James Hanley in reply to North says:

        David,

        Some random jackass on the internet spins a theory out of their own mind, it’s fair to call it dumb because it’s generally very superficial and poorly thought out. A set of theories that have had civilizational shaping effect, been taken seriously by thousands of subsequent theorists, and still continued to be taken seriously–even when rejected–by political philosophers? Only a fool would dismiss such a set of ideas as “dumb.” Hell, I’m anti-Marxist to the core, and I’ll happily explain how Marx erred, but I’d never say Marxism was dumb. Only someone who didn’t understand it well would say that. I think social-constructionism is deeply, fatally, flawed, but at the same time I recognize the value of the social constructionist critique, and the extent to which they provide a needed corrective to our tendency to see our own culture as naturally, objectively, correct, so I wouldn’t just dismiss it as stupid.

        Likewise, simply dismissing classical liberal state of nature theory as just “stupid” indicates you don’t know the subject very well at all.

        As to negative rights and natural law, there’s simply no necessary connection. Even if we accept all rights as being purely social constructions, there is a basic logical distinction between not having someone place obstructions in your path (negative rights) and not having someone remove obstructions from your path (positive rights). Even if there are boundary cases, at the outer edges this is true, and wholly independent of any concepts of natural law.

        Natural law theorists have tended to focus on negative liberty as natural rights, but they have focused on what is a logical construct that exists independently of their affection for it.Report

      • Avatar LWA in reply to North says:

        @burt-likko
        How does “remedy” enter into the distinction here?

        We are talking about how the government has the right to coercively force me to pay for trespasser-removal services, but doesn’t have the right to coercively force me to pay for pregnancy-protection services.Report

      • Avatar Burt Likko in reply to North says:

        Rights and remedies are intextricably intertwined, @lwa . Without an appurtenant remedy, “rights” are words, ideals, concepts. Remedies make them real. The issue comes up because it seemed to me something was being lost in the discussion of positive versus negative rights.

        If I am convicted of treason for publishing statements critical of the President, my right of free speech gives me the remedy of reversal of that conviction. This, of course, is the very definition of a negative right, because the one whose action would violate that right (the government) is prohibited from so acting in the first place, and if that actor nevertheless does act, the remedy which vindicates that right is nullification — negativing — the act which denied me my right.

        Negative rights as against the government are easy to understand, at least to me.

        Positive rights, on the other hand, are an affirmative exercise of power. I do not have to wait for something bad to happen to me before I can do something to someone else in order to exercise that right. California experimented with the concept of a positive speech right for a time, in the (in)famous PruneYard case, where private citizens demanded, and were granted by the Court, the affirmative right to enter on to private property for the purpose of engaging in political speech notwithstanding the objection of the private property owner. Since then, the courts have backed away from this because it overreached boundaries of individual autonomy — but the point is the same: in a positive rights scheme, I am granted the affirmative ability to do something, because it is my right. I can pro-actively seek a remedy as against you; I need not wait until you deny me the ability to do that which I wish to do within the boundaries of the right.

        In this sense, a positive right is akin to the statutory creature we call an “entitlement.” Except it’s written into the fundamental and highest law of the land, so everything else in the legal scheme must incorporate it; it is subordinate to, and at worst co-equal to, all other legal concepts like due process, free speech, enfranchisement.

        Circling back to the OP, this is the difference between Hobby Lobby Stores, Inc. being legally required to not interfere with an employee’s private purchase of contraception (something that Hobby Lobby dud not claim the authority to do, at least in this case) and an employee of Hobby Lobby Stores, Inc. being able to say “As my employer, you must (partially) pay for my contraception, because it is an essential component of my affirmative right to gender equality which you have a duty to make manifest in reality.”

        The first, negative formulation of the right of access to contraceptives seems trivially non-controversial. The second one seems to me to at least raise a legitimate question. I would have found that Hobby Lobby had to purchase the disputed contraceptive insurance coverage, but for a different reason than this: a law of general applicability required it to do so, and I did not think that the cited exception to that law applied to Hobby Lobby.

        But I don’t think Hobby Lobby has a duty to affirmatively advance the cause of gender equality, despite the net good that might very well result from imposition of such a duty.Report

      • Avatar zic in reply to North says:

        @burt-likko

        My problem with this is not HL, it’s that the court, specifically Justice Robert’s opinion, singled out contraception as the sole application of this religious exemption; a gender bias in and of itself. The opinion does not grant a closely-held company owned by Christian Scientists the right to provide insurance that doesn’t cover blood transfusions or vaccinations, for instance, it singles out an essential health-care need explicit to women.

        I also cannot think of this case as a single thing; it’s part of an ongoing building of legal precedence. I’d make a large bet that we’ll see future cases and laws to restrict abortion citing HL as allowing a religious exemption for life beginning at conception, for instance; or laws to ban certain contraceptives because, via HL, they cause abortions, despite the actual science here.Report

      • Avatar LeeEsq in reply to North says:

        I find the entire state of nature debate stupid based on what we actually know about the state of nature. Even in the most benign natural environment for humans, say Hawaii with its relatively ample resources, constant decent temperature, and other advantage; it still takes a lot of work for a single human to survive on his or her own. Survival is still easier in a group where you have people to help you if you get sick or injured or something. Lets remember that very few humans are able to be constantly alone without going nuts. Even if a person does have the skills necessary to survive alone, the mental toll of the lack of content will make using those skills more difficult. We are social animals. The state of nature fantasy presuposes that the normal human is capable of living completely alone and without the aid of others when that isn’t true at all unless your resolutely mentally strong and have supreme survival skills.Report

      • Avatar DavidTC in reply to North says:

        @james-hanley
        Even if we accept all rights as being purely social constructions, there is a basic logical distinction between not having someone place obstructions in your path (negative rights) and not having someone remove obstructions from your path (positive rights).

        No, there isn’t any sort of logical distinction at all. Mainly because the way that ‘not having someone place obstructions in your path’ works is that *the government removes that obstruction if it’s placed in your path*.

        People arguing negative rights exist are basically taking a possible universe, calling that ‘a state of nature’ (Non-natural rights people call it different thing. Let me call it the ‘default state’.), and asserting that any rights that move away from that default state are positive rights, whereas any changes back are merely enforcing negative rights.

        The problem is…there’s no reason to call anything the default state, outside of the theory of natural rights, which is, (let me carefully check your approved wording), ‘nonsensical’.

        Without the concept of natural rights, it’s perfectly possible to claim the default state is a right to free birth control, plus the right to freely commit assault, which must be weighed against people’s the right to wear hats. (So the doctors employed by the government to distribute birth control are merely enforcing a negative right, but *giving out* hats would be a positive right. Everyone has a right to own a hat, but not to a free hat.)

        Basically, people talking about negative vs. positive rights are just inventing the universe they want to live in, and asserting that *of course* the government should be making sure that universe exists, and doing so is just enforcing negative rights and perfectly fine, but the government maybe shouldn’t do anything else, because those are the dreaded ‘positive rights’ that are frowned upon.

        Natural rights are a rickety bridge that lead nowhere, but it was, at least, something that claimed to explain this ‘default state’. Without that bridge, the entire concept of ‘negative rights’ is pulling a Wile E. Coyote and walking in thin air.

        Even if there are boundary cases, at the outer edges this is true, and wholly independent of any concepts of natural law.

        The ‘boundary cases’ are merely places where people who invented their ‘default universe’ haven’t actually fleshed things out, or run into contradictions. The *entire thing* is completely unsupported.Report

      • Avatar James Hanley in reply to North says:

        No, David, I disagree. But to date I’ve found every discussion with you to be tedious and uninformative, and I get involved in too many discussions with too many people anyway. So I’ll leave your comment as the last substantive word on the matter.Report

      • Avatar Mark Thompson in reply to North says:

        @zic While I understand why the limitation to contraception appears like this was a situation of just devaluing women’s rights as compared to others’, I think there’s a lot more to it than that.

        As you may recall from when we did the mock court exercise on Hobby Lobby, I had gone into the exercise strongly predisposed against Hobby Lobby, but ultimately changed my mind and wrote the opinion in Hobby Lobby’s favor. (FWIW, I’ve since changed my mind again because I’ve become convinced that there is no burden on religious exercise since insurance should be no different from any other form of compensation).

        For that to happen, my mind needed to be changed on both the question of standing and the question of whether this was a violation of RFRA. RFRA is a statute, not a Constitutional doctrine, but because it is a statute, it sets several very clear requirements – once it is determined that there is a burden on religious exercise, the government can still win, but only if it shows the existence of a compelling interest and that its actions are the least restrictive means for achieving that compelling interest.

        While I’ve written a lot about how my mind was changed on the issue of standing, what changed my mind on the question of whether this was a violation of RFRA was that the government already had carved out exemptions for other entities. It was hard for me to conceptualize how applying the mandate in these cases was the “least restrictive means” for achieving the goal of ensuring meaningful access to contraception when the government already had granted a large number of exemptions to other (albeit nonprofit) employers and was providing supplemental coverage to make up for any shortfall. What was more, I was unable to find a single argument from the government or any other amicus (admittedly I didn’t read every amicus brief) explaining why it was unable to expand these exemptions to include some closely-held for-profit companies. Instead, every single argument I found on this point just generally seemed to say that “just because there are exemptions doesn’t mean that a less-restrictive means is available,” but never once explained why a less-restrictive means was unavailable in this case.

        Looking at Roberts’ opinion, that is precisely the rationale he provides for his decision as well. He writes: “Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections.”

        That is also why he says that the decision is limited to the contraceptive mandate, and it is what distinguishes this from the case of blood transfusions and the like – the government hasn’t issued a whole bunch of religious exemptions, to my knowledge at least, to entities with religious objections to blood transfusions or vaccination.

        In essence, what separated this case from others was that it’s really hard to argue that the government has chosen the least restrictive means of applying this regulation when it has already implemented less restrictive means of applying the same regulation for other entities.

        Perhaps this was just a pretext on Roberts’ part, and perhaps it really was a predetermined function of him just placing women’s rights on a lower tier. But it’s hard for me to come to that conclusion when this precise issue actively changed my own mind about this topic.Report

      • Avatar zic in reply to North says:

        @mark-thompson

        I really think you fail to grasp my concern here. It’s not that there’s some other way to provide contraception, not that it’s free; it’s that the ruling sets contraception, a particularly gendered form of health care — apart as something that others have a legal right to decide. This decision takes the very new (and I stress this) notion that women have the right to decide this for themselves, and puts others’ moral judgements over it. Roberts was very clear — no other health care procedure. Just contraception. He singled that out; and that is had not been done before you wrote that decision.

        It’s rather like civil unions vs. SSM — the same, only different. Segregated schools. It creates a class of people who are not quite equal, people who are subject to other people’s whims.

        And I suspect a great part of the problem most people have in seeing this is that this second class has, for most of history, been the norm; hence my stressing the newness of this moral authority that women own. Without modern medicine, it could not exist.Report

      • Avatar Mark Thompson in reply to North says:

        @zic I understand that. My point is that I think you’re incorrect about the extent to which it seeks to single out contraception. It distinguishes this particular case from others, yes, but that’s what judicial decisions just about always do. All that it stands for is the proposition that the government can’t claim that it is achieving its goals by the least restrictive means by applying the restriction to the plaintiff when it is using a less restrictive means in how it applies or doesn’t apply those restrictions to other entities.

        He doesn’t say that there are no other cases where the government will lose – in fact, there have been a number of other cases where the government has lost RFRA cases. He does single out a couple of other situations about which people are particularly likely to be concerned as being the logical extension of the decision and saying that those logical extensions aren’t so logical. And for the transfusion and vaccination issues, he’s not even saying that there are necessarily no circumstances where the government would lose; instead, he’s just saying that the mandate questions need to be taken on a case-by-case basis. He then -responding to the dissent – says that under no circumstances would the logic apply to discrimination laws, which he insists are already the least-restrictive means.

        At no point is he claiming that there’s something inherent in contraception that qualifies it for a ruling against the government; instead, so far as I can tell, he’s just saying that the government loses here because the government has a less restrictive means of achieving its goal. That least restrictive means test isn’t unique to contraception and isn’t something he just made up for this case – it’s in the language of the statute.Report

      • Avatar Dave in reply to North says:

        @zic

        My problem with this is not HL, it’s that the court, specifically Justice Robert’s opinion, singled out contraception as the sole application of this religious exemption; a gender bias in and of itself. The opinion does not grant a closely-held company owned by Christian Scientists the right to provide insurance that doesn’t cover blood transfusions or vaccinations, for instance, it singles out an essential health-care need explicit to women.

        I don’t see gender bias as much as I see a court ruling only on the issue in front of it. When the Court has a challenge brought to it by Christian Scientists that want to exclude blood transfusions, it can rule on it then based on the facts and arguments specific to that case.Report

  14. Avatar Kazzy says:

    @zic

    Great piece.

    I’m curious about the inverse of this, namely whether women possess a right to assistive reproductive health measures. Because as it stands, many women who want to get pregnant are still limited in their ability to do so by chance, not by choice.

    I know some states require certain procedures/therapies/whathaveyou as a part of insurance plans. I don’t know what the ACA says about the matter at a federal level. But regardless of what the law says, do you think this, too, is a right?Report

    • Avatar zic in reply to Kazzy says:

      Honestly, I don’t know @kazzy

      From the perspective of ACA, I’d say no, not as written; for the contraception mandate flows out of a mandate to cover preventive health care without co-pay, a part of preventive services covered by health-insurance premiums.

      I do agree that it’s something to think about and consider; women essentially have 20 years where they’re reliably fertile; the beginning of those years, society considers them too young, the prime years are when they’re getting educated and establishing careers; and preventing an unplanned pregnancy matters tremendously. That puts child-bearing into the late 20s and early 30s, where fertility begins to decline. It’s an important discussion, and will, I suspect gain some imperative because of the economics faced by my children’s generation, through no fault of their own. My elder child is 28; and very few of her peers have begun families yet.Report

      • Avatar Kazzy in reply to zic says:

        Thanks, @zic . Zazzy and I have been incredibly fortunate thus far with regards to our ability to reproduce. We are very thankful. A close friend of mine did not enjoy such luck. She has one child now and that will likely be it for her, despite desperately wanting more (she’s indicated a brief monthly crying session with the arrival of each menses for the past 7 years; regardless of the appropriateness of this reaction, which I will not even begin to attempt to weigh in on, it is nonetheless the state she finds herself in). This is solely a function of chance. Zazzy’s tubes seem ideal for fertilization and implementation and my friend’s are anything but. While she has never attached the word “unfair” to her situation, I can think of few better words to describe it.

        And, yes, life is unfair and there is no right to fairness and even less of a reasonable expectation that the government can address any and every unfairness that might arise. And perhaps my judgement is clouded by the intense emotional response I have to my friend and her situation, but it seems like a worthwhile conversation to have in conjunction or addition to what you discuss here. While opposite sides of a coin, the idea of ensuring women have as much control as possible over when, where, how, and if they have children seems a reasonable and important goal.Report

      • Avatar LeeEsq in reply to zic says:

        The mantra that life is unfair is useless. Its either said by very fortunate people looking for some reason not to even care emotionally about the less fortunate or its a fatalistic statement by those dealt a harsh hand in life. Life might not be naturally fair but we can do quite a bit to make it less unfair in many aspects.Report

  15. Avatar Patrick says:

    I would just like to say that @chris stole my brain and wrote these two comments that I heartily endorse (clearly he got them out of my stolen brain because he never writes anything that wordy and I always do).Report

    • Avatar Chris in reply to Patrick says:

      There are worse brains I could be accused of stealing, to be sure!

      I do think you and I have agreed in the past about “rights” and what we should do with them, as a concept.Report

      • Avatar Patrick in reply to Chris says:

        I don’t mind keeping them around as markers for normative judgments, but far too often I see them used as proscriptive limitations on talking about values under the guise of them being sacrosanct, themselves.

        “We’d absolutely agree that (foo) would be nice, but we can’t really do anything about (foo) because doing so would infringe on somebody’s right to (bar)”.

        Well, all the tough shit we want is about negotiating rights conflicts, so I don’t see why this needs to stop the conversation, and getting people through that is usually too much goddamn work.Report

      • Avatar zic in reply to Chris says:

        @patrick and @chris

        So how do I talk about this in a meaningful way?

        From what I can see of history (and I tried to lay out the changes in the OP), there has been a shift of technology, medicine, etc. that has, over the last century, allowed women to be fully equal — but only if a greater society accepts that. To me, it’s that acceptance that constitutes ‘right.’ In the context of this discussion, it’s about the social acceptance of religious norms that prevent women from being fully equal in conflict with the social norms that allow women access and opportunity to the things necessary for them to have an opportunity to be fully equal.

        I get that a discussion of this as rights is problematic (I rather regret writing the whole piece now, the real point — that letting women have this ‘say’ has shown women generally act responsibly — has gotten totally lost in the whole ‘who pays’ argument.)

        I don’t know how else to discuss this; to suggest that this particular moral determination belongs to the individual, and that ability is always at risk because of the judgment and control from groups who think it their responsibility to make moral decisions for the individual. At it’s very root, to me it seems like a theft of moral agency.

        So how do I even begin to frame this without framing it as rights?Report

      • Avatar James Hanley in reply to Chris says:

        That’s true, but I would argue that it’s also true that sometimes all that’s being said is, “let’s not casually overlook rights when we talk about (foo),” and sometimes the response to that is to say “OMG, you and your precious rights, you won’t even let us talk about (foo).”Report

      • Avatar Chris in reply to Chris says:

        In the context of this discussion, it’s about the social acceptance of religious norms that prevent women from being fully equal in conflict with the social norms that allow women access and opportunity to the things necessary for them to have an opportunity to be fully equal.

        That is a good point, and your question is a good one. At the very least, I think we should give equal weight to obligations, that is, we talk about values, and then we talk about the obligations that those values place on us. If we value women’s equality, then that obligates us to do the sorts of things that will bring it about. If that means that, collectively, we provide access to contraceptives and abortion, then that is our obligation.Report

      • Avatar Patrick in reply to Chris says:

        @zic, for what it’s worth, I thought you did a pretty good job in the OP for outlining your case.

        And I don’t know that I have a really good suggestion for a replacement. The issue with Rights Talk is that foundationally, it comes from the Natural Law folks and the Natural Law folks always talk about rights as things that cannot be infringed, and everybody talks about rights accordingly.

        When it is absolutely 100% clear that we infringe rights all the time. There are no unabridged rights. I can’t think of one, myself. Every time I try to express something in those absolutist terms, I can think of a “yes, but” counter, anyway.

        To the extent that everybody in a conversation is willing to accept that rights can come into conflict with each other, talking Rights Talk can work because everybody’s clear that the distinctions between say, positive and negative rights or the distinction between which right wins out in which case are largely arbitrary, so you can’t have generalizable rules. We’re only talking about this particular Rights Conflict and discussing them in a non-normative sense, how we should assess the conflict… which is largely a consequentialist argument.

        Those are the hard cases that are worthwhile talking about.

        But as the thread illustrates, it’s hard to have that conversation here on this blog because people get pulled into two directions both orthogonal to the originally discussion: trying to generalize based upon arbitrary distinctions (which is inappropriate) or trying to make declarative normative statements (which is fine, but largely irrelevant, it’s basically saying, “I don’t see a conflict here, I think Bar beats Foo”)

        I applaud the effort, really. The observation about Rights Talk was more to the commentariat than the OP.Report

      • Avatar Patrick in reply to Chris says:

        @james-hanley

        That’s true, but I would argue that it’s also true that sometimes all that’s being said is, “let’s not casually overlook rights when we talk about (foo),” and sometimes the response to that is to say “OMG, you and your precious rights, you won’t even let us talk about (foo).”

        Oh, sure. I don’t know how often that actually happens here between interlocutors who are really trying, though.Report

      • Avatar James Hanley in reply to Chris says:

        Patrick,

        I think you just implicitly accused some interlocutors of not really trying. 😉Report

      • Avatar Patrick in reply to Chris says:

        Not everybody participates in the blog in the spirit of the blog.Report

      • Avatar Jaybird in reply to Chris says:

        So how do I even begin to frame this without framing it as rights?

        Jurisdiction.

        What is the argument that allows you to prevent me from (whatevering)?
        What is the argument that allows you to confiscate something in my purse?
        What is the argument that allows you to shoot me if you tell me to stop and I don’t stop?Report

      • Avatar j r in reply to Chris says:

        I applaud the effort, really. The observation about Rights Talk was more to the commentariat than the OP.

        Except for the 33 different instances of the word “right” or “rights” in the OP.Report

      • Avatar Patrick in reply to Chris says:

        @j-r

        It’s pretty clear to me from my participation with zic on the blog that she uses the term “right” as “something that should be protected by our legal system”, and that she’s mostly a relativist about “rights” in that (like Chris and I) she doesn’t think of them as self-evident or natural.

        So when she uses the word “right” in the OP, she’s saying, “these are things that I feel the government should be empowered to protect”, not “these are things that I think are natural, or self-evident, or irrefutable, or etc., etc.”

        The distinction between positive and negative rights is largely irrelevant in this framework, except as an operational distinction.

        It would be nice if people responding to the OP would respond on the grounds upon which she uses the word.Report

      • Avatar James Hanley in reply to Chris says:

        Patrick,

        So you think she doesn’t think equality for women is a right that’s either self-evident or natural?

        That’s possible, but her vehemence on the issue (a justified vehemence, imo, that’s a description, not a critique) seems of the kind usually found only among people making natural rights arguments. If it’s not being viewed as a natural right of some sort, the moral crusade type language seems a bit hard to reconcile.

        And honestly, if someone had left a comment that just said, “I don’t think women have a natural right to equality with men,” I’m as challenged to believe that zic would have agreed as I am to believe she ought to have agreed.Report

      • Avatar Patrick in reply to Chris says:

        @zic

        So you think she doesn’t think equality for women is a right that’s either self-evident or natural?

        My guess is that she’d say it’s as self-evident and natural as any of the other rights that natural law thinkers think are self-evident or natural.

        Natural law thought has some advantages to it, but it’s awfully ineffable on that point. If you’re going to adopt the framework, you’re going to spend most of your time on that part of the framework: talking about what is or what is not self-evident.

        Because once you get there, you get the whole raft of conclusions that comes with it.Report

      • Avatar James Hanley in reply to Chris says:

        I agree with you (I’m not a natural law person myself). But doesn’t that suggest that maybe j r wasn’t actually misinterpreting her so badly?

        I mean, I’m not sure zic’s actually a natural law person (I’ll take her word on it, whatever word that might be). But the approach here seems to smack of that. And I think it could be just because the issues are so overwhelmingly important to her that all contradicting/obstructing claims must, in her eyes, fall before it. But that’s pretty indistinguishable from a natural law claim because it fits squarely with your phrasing “rights as things that cannot be infringed.”Report

      • Avatar j r in reply to Chris says:

        Because once you get there, you get the whole raft of conclusions that comes with it.

        That is kind of the point.

        You say that it is clear to you that @zic is moving towards some relativistic conception of rights, but perhaps you have some insight into her mind that I do not. I can only read what is written. And from what is written, it is pretty clear that she holds a pretty strong/absolute conception of women’s equality. Further, it is fairly clear that the post is an attempt to locate the claim on the provision of contraceptive goods and services squarely within a framework of universal human rights.

        What is also clear is that while the post holds the claim to reproductive health services as part of an indispensable basket of rights and privileges, it, at the same time, attempts to relegate other matters of conscience (religious beliefs, for instance) to the status of mere opinion. And this contradictory claim is what makes the distinction between negative and positive rights relevant.

        You have a right to pursue your own happiness so long as you directly harm no one else, even if somebody else finds the thing that makes you happy morally repugnant. Your claim to your life is secondary to that other person’s opinions about your life. However, once you go from simply asking that person to leave you alone, to claiming the ability to coerce him into helping you achieve your happiness, you have brought him into the situation. And I don’t mean that merely on a philosophical level. I mean it literally. In attempting to force him to provide you with goods and services, you have given him a voice on which goods and services you ought to be provided.

        You can, of course, wish that the other person would raise no fuss, that he would just shut up and do as he is told, but, people being people, that is a bit of pipe dream. Again, once the ACA brought the employee mandate into being, it gave companies like Hobby Lobby a voice in the conversation over what reproductive goods and services employees ought to be able to access.

        All that I have said, repeatedly, in this thread is that if you really want to get employers and everyone else ought of the decisions that ought to be rightly made between a woman and her doctor, then keep employers and others out of the equation all together.Report

      • Avatar zic in reply to Chris says:

        The right of women to participate has been hard fought and incremental. There’s no ‘natural law’ about it; it takes societal agreement and support. It is an ongoing negotiation; what most men take for granted women cannot afford to take for granted.

        As to other claims (particularly religious claims) I fully support them in as individual choice — so I’d be aghast at attempts to suggest Catholic women who felt it wrong to use contraception or have an abortion should be persuaded to the contrary. That is her moral choice, to make in accordance with her husband, family, church, etc. But it is not her church’s choice to make for her; it can offer the moral reasoning that she should consider, but at the end of the day, it’s her, and her alone, wrestling with right and wrong that (by my lights) is the deciding factor. This is the decision that, for all history, has be wrested from women, the theft I find objectionable.

        I don’t find that lacking in consideration, I find it placing the consideration where it responsibly belongs — to the person who, by their own lights, will be living with the results for all their days and, if they so believe, in the hereafter.Report

      • Avatar Patrick in reply to Chris says:

        And from what is written, it is pretty clear that she holds a pretty strong/absolute conception of women’s equality.

        Sure.

        Further, it is fairly clear that the post is an attempt to locate the claim on the provision of contraceptive goods and services squarely within a framework of universal human rights.

        Sure.

        It is, after all, an attempt to take on the rights folks on their own ground.

        What is also clear is that while the post holds the claim to reproductive health services as part of an indispensable basket of rights and privileges, it, at the same time, attempts to relegate other matters of conscience (religious beliefs, for instance) to the status of mere opinion.

        Then you’re reading a different post than I am?

        To quote from the post:

        “It’s easy to be distracted by the question of “who pays,” because the Greens framed this as an exercise of their religion by refusing to pay for insurance they consider morally objectionable because it may cause an abortion. But this is not just a question about who pays. It’s a question about “who says.” (emphasis mine).

        That’s not relegating anything to opinion, it’s pointing out that there is a conflict, not that one side is necessarily inferior. In fact, she says (again emphasis mine):

        “My preferred outcome, given what we have for a political system, legal precedent, and statute would be for employees working for corporate objectors to be covered by the government and or insurance companies in a way that seems seamless to the employee; while corporate objectors pay for their objection with a tax penalty exactly as real, non-corporation people pay a tax penalty when they decline to purchase health insurance, thus offsetting the rent-seeking objectors are placing on everyone else. There are two conflicting obligations here, first, not to overtly intrude on someone’s religious practice while second, not to violate another person’s universal human rights.

        I don’t see relegating anything to opinion, there, I see “people who are talking about religious freedom as the ‘rights trump card’ are ignoring that there is a rights conflict here”.

        And this contradictory claim is what makes the distinction between negative and positive rights relevant.

        I don’t see a contradiction here, because she’s not asking you to relegate your religious beliefs, she’s asking you to consider women’s reproductive health as a right, itself.

        And the positive v. negative bit only matters if negative rights are necessarily “more important” than positive ones, which is debatable.Report

  16. Avatar Dave says:

    @patrick

    But as the thread illustrates, it’s hard to have that conversation here on this blog because people get pulled into two directions both orthogonal to the originally discussion: trying to generalize based upon arbitrary distinctions (which is inappropriate) or trying to make declarative normative statements (which is fine, but largely irrelevant, it’s basically saying, “I don’t see a conflict here, I think Bar beats Foo”)

    I think this is largely because constitutional theory is lacking in a lot of the comments (people seem too fixated on an abstract concept of rights). People seem more concerned about criticizing natural rights theory than recognizing that the framers and ratifiers held certain views about natural rights and those views made it into the original Constitution. This isn’t abstract meta stuff. It’s history and that fact should be self-evident even if people don’t think natural rights are.

    Chris was right about looking at rights at a specific point in time and in a specific context. Whether he intended or not, he explained the background of the decades long constitutional conflict between the Progressives and the classical liberals over competing visions of both the Constitution and the law itself. The Progressive saw a world that would have been completely foreign to the founders and saw solutions beyond what the founders would have anticipated themselves, especially given the more de-centralist tendencies of some of them. It took decades, but the hard work paid off for them.

    Yes, I think that we’ve gotten a lot more comfortable with the concept of positive rights, but we still have to honor our pre-existing commitments. As far as I can see, there are two ways to do it: 1) the less likely alternative – leave rights alone, and; 2) the more likely alternative – “restrict” or “regulate” rights with the proper level of justification through the least intrusive means available. For the most part, I’m fine with this.

    To the extent that everybody in a conversation is willing to accept that rights can come into conflict with each other, talking Rights Talk can work because everybody’s clear that the distinctions between say, positive and negative rights or the distinction between which right wins out in which case are largely arbitrary, so you can’t have generalizable rules.

    I don’t necessarily know if I agree with this. The free exercise of religion is not only a negative liberty but it’s an enumerated constitutional right, clear as day in the First Amendment. To the extent any positive right interferes with an enumerated constitutional right, it’s easy to point to the source of the conflict – the statute itself. Paraphrasing Article 6, Section 2, the Constitution, and all laws made in pursuance thereof, are the supreme law of the land.

    We know that the Free Exercise Clause is the supreme law of the land. Can we say the same about a statute that, according to some, interferes with that right? No, we can not. How to we figure out which way to go? Easy. This is how the Supreme Court decides cases and controversies. In Hobby Lobby, it was a statutory claim but the same thing would apply for a constitutional question – a compelling interest test, as I mentioned above. It’s going to apply a heavy presumption against the statute unless the government can justify its case. Off the bat, the scale is tilted towards the enumerated constitutional right. That doesn’t mean it’s going to stay there but the framework is pretty obvious.

    Natural law thought has some advantages to it, but it’s awfully ineffable on that point. If you’re going to adopt the framework, you’re going to spend most of your time on that part of the framework: talking about what is or what is not self-evident.

    In this discussion, that doesn’t seem to be relevant because the natural right in question is an enumerated constitutional right.

    I don’t see a contradiction here, because she’s not asking you to relegate your religious beliefs, she’s asking you to consider women’s reproductive health as a right, itself.

    Like James, I would consider it a positive right. Like James, I would have no problem with the federal government providing these services to women. However, I can’t say I’m particularly sympathetic to positive rights curtailing longstanding constitutional rights without the appropriate level of justification.

    What @mark-thompson said:

    In essence, what separated this case from others was that it’s really hard to argue that the government has chosen the least restrictive means of applying this regulation when it has already implemented less restrictive means of applying the same regulation for other entities.

    Just my $.02.Report

    • Avatar Kim in reply to Dave says:

      So you’d have been against Social Security, as originally written/implemented?

      Part of the difficulty of Freedom of Religion is that Religion is a moving target… particularly in some of the more ad-hoc religions. We know (because Rulings!) that Insurance isn’t Mandatory if your religion says it’s a Sin, but you still can’t have Pot even if your religion says you must. But Indians can have magic mushrooms (I think?)…Report

      • Avatar Dave in reply to Kim says:

        So you’d have been against Social Security, as originally written/implemented?

        I’m sorry. I keep forgetting. All I need to know about the Constitution is “general welfare” – my bad. Ratification debates be damned.

        Part of the difficulty of Freedom of Religion is that Religion is a moving target… particularly in some of the more ad-hoc religions.

        Isn’t that why we litigate?Report

      • Avatar Kim in reply to Kim says:

        Dave,
        Stay on subject. I was talking about the Amish freedom of religion, in direct conflict with Social Security.
        General welfare is not in scope.Report

      • Avatar Dave in reply to Kim says:

        What’s the case?Report

    • Avatar zic in reply to Dave says:

      @dave

      HL decision is one point in a trend; I wrote about trends.

      Have you bothered to look at the Becket Fund’s work here? Or that 22 states curbed access to abortion in 2013? That, prior to 2013, about half of states had no regulation concerning women’s reproductive health care, and women had to pay out-of-pocket for it, including maternal care?

      @patrick used the term whackamole to describe the trend. Another might be throwing everything out there to see what sticks. But the goal here is obviously to cast into law moral decisions that, I argue, belong to the individual woman (since men don’t get pregnant); a theft of women’s moral agency; and one condoned by several thousand years of tradition.

      You’re church may view drinking as immoral, but the decision to drink or not to drink is with each individual, not the church. The church may view eating meat as immoral, but the decision resides with the individual.

      Perhaps it was a mistake to bring HL into this; but the post was written to the lack of insight I continue to see on that very basic issue — it is not okay to presume you have the right to make these choices for her.Report

      • Avatar Dave in reply to zic says:

        @zic

        When I first started really cutting my teeth on constitutional issues about 12 years ago or so, I was duking it out with social conservatives on culture war issues (you name it, I fought it). I’m fully aware that there are well-funded conservative groups seeking to undermine the gains that have been made under the guise of a so-called “culture war” (I hate that term). The subjects I paid most attention to were same sex marriage, evolution/creationism and the separation of church and state. I stayed away from the abortion debates if only to prevent the predictable headaches that followed. Groups like Beckett, the Thomas More Law Center, the ACLJ, etc. represent people that want to take many of these gains and wipe them off the map completely.

        I think the throwing everything out there approach is exactly what they’re doing. They’re looking for every and any possible way to score legal victories. Who can blame them? They haven’t done too well, have they? If you want to believe that HL is part of a trend, that’s fine but I see it as a rare and very limited victory.

        My guess is that states will pass laws and people backed by liberal interest groups like the ACLU will sue. It’s happened in other places before if I recall. Anything that falls outside of the constitutionally permissible boundaries of current abortion law will get struck down. Whether or not anything makes it up to the Court I have no idea. A few other points:

        But the goal here is obviously to cast into law moral decisions that, I argue, belong to the individual woman (since men don’t get pregnant); a theft of women’s moral agency; and one condoned by several thousand years of tradition.

        I know what their goals are and I personally find them repugnant. Again, what I said above applies.Report

      • Avatar Dave in reply to zic says:

        @zic

        One quick point before I step out. I don’t mean to demean your position at all. My point is that women’s rights and gender equality have been in the crosshairs of these people for a very long time yet advancements towards gender equality have been made (and some pretty big ones). I want to see more.

        I guess I’m looking at this from the big picture. I’m not telling you not to fight. I just wonder if you’re overestimating the threat (or me the opposite).Report

      • Avatar zic in reply to zic says:

        Since lower courts have a tendency to read high court decisions rather more broadly than originally intended, I see great harm to singling out contraception as something subject to someone else’s moral purview; as I told Burt upthread, akin to Dred Scott.Report

      • Avatar James Hanley in reply to zic says:

        Anything that falls outside of the constitutionally permissible boundaries of current abortion law will get struck down.

        As in Alabama and Mississippi, in just the past week.Report

  17. Avatar zic says:

    I’m quite certain nobody bothered with the links in this piece, so I want to point one out; a mirror for men, on sexual morality and chastity for men:

    http://the-american-catholic.com/2009/01/06/dont-adulterate-the-adultery/

    The point we miss, though, is not whether or not we can carry out the sexual act, but where our desires are, what we are doing with sexual impulses. When we look at pornography, we are once again turning sex inwards, even if we don’t masturbate. We’re taking sexual gratification from the image, placing that pleasure above our fidelity to our spouses, and above the human dignity of the person we’re viewing. That’s why Jesus warned us of adultery of the mind. We do indeed take sexual gratification from looking lustfully, be she right there before us, in a picture, or even purely imaginary. This violates the natural ordering of sex, violates chastity, violates fidelity.

    Report

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