The Presumption of Liberty?

Check out NPR’s Morning Edition today, at least at 8:00 a.m., and you’ll find the lead item isn’t the impending jobs report, the European economic crisis, or even President Obama’s latest campaign speech. No, it’s “Catholic Groups Fight Contraceptive Rule.” Sex, women, discrimination, religion, and health care: What could be more natural for NPR, more right down its alley? Yet the issues the story raises---not broached in this story, of course---go well beyond those pegs. What we have here, in microcosm, is a conflict with a thousand and one variations in the modern ubiquitous state.

New regulations under ObamaCare, it seems, will require employers, universities, and others who offer health insurance benefits covering prescription drugs to cover prescription contraceptives as well. For many Catholics, of course, that’s a concern. As Catholic University President John Garvey wrote recently in The Washington Post, "if we comply, as the law requires, we will be helping our students do things that we teach them, in our classes and in our sacraments, are sinful---sometimes gravely so.” He and others are asking for a religious liberty exception.

But why stop there? The issue is perfectly generalizable. And it arises in the thousand and one ways it does because our ever-expanding anti-discrimination laws, as they restrict private parties, conflict directly with our liberties---in particular, with our right to associate, or not, with anyone we wish, for any reason, good or bad, or no reason at all.

Currently, the story notes, 28 states require contraceptives to be offered in health plans, eight with no exception for religious organizations. Some have tried to get out from under those laws by self-insuring, but that’s where the federal Pregnancy Discrimination Act of 1978 kicks in. Still, the story adds, an EEOC ruling under that statute binds only if the people being discriminated against take action. Hence the ObamaCare rule, which compels up front.

And what’s the rationale for the anti-discrimination rule? "Prescription contraception is a form of health care that is unique to women,” says the ACLU’s Sarah Lipton-Lubet, “and the consequences of the inability to be able to access contraception, those fall primarily on women." Women would have no access to contraceptives, we’re invited to believe, if their health insurance plans didn’t pay for them---or access as well to anything else not covered, presumably. That’s how we’ll all end up with “Cadillac plans,” until employers, unable to afford them, will stop providing any health insurance benefits at all---yet then will have to pay the penalty ObamaCare exacts for opting out.

But Ms. Lipton-Lubet’s rationale doesn’t stop there: "What the bishops and their allies are asking for is the ability to impose their religious beliefs on people who don't share them,” she says. Think about that. It’s the bishops who are forcing their beliefs on others, not the government that is forcing employers to pay for coverage they oppose. That’s what we come to when, as Obama has repeatedly said, “we’re all in this together.” Opting out, cost free, is not an option---it’s discrimination, whether in health care, or housing, or lending, or college admissions, or employment, or any other private endeavor that today is so highly regulated by our anti-discrimination laws. Freedom of association is today the exception, not the rule, with government in charge of dispensing the exceptions.