Fifty years ago “advocates” argued that contraception should be legal even if a state legislature said it shouldn’t be. Now they’re arguing that it should be free and paid for by people who think it’s immoral.
You’ve come a long way, baby.
Maura Healey, the Massachusetts attorney general, just filed an objection to President Donald Trump’s attempt to restore sanity to this facet of federal health policy.
Under Trump’s new policy, the Little Sisters of the Poor, a Roman Catholic religious order that runs nursing homes for poor people, wouldn’t have to provide coverage for contraception in the health plans they offer employees.
In Maura Healey’s world, they would.
How can she justify it?
Apparently it has something to do with the Establishment Clause of the First Amendment of the United States Constitution.
Lest you think this is some deep technical matter, here’s what that clause says: “Congress shall make no law respecting an establishment of religion …”
As in: The federal government can’t establish a particular denomination as the official religion of the government, the way the Church of England is (theoretically) in England.
That’s pretty simple, right?
Here’s what the Deep Legal Thinker had to say Friday, explaining why Trump’s new policy is unconstitutional:
“First of all, it’s a violation of the Establishment Clause. It violates the Establishment Clause because it allows an employer’s religious beliefs to override an employee’s religious beliefs. Put another way, it allows an employer to impose its religious beliefs on an employee.”
For this line of argument — if that’s what it is — to be even remotely relatable to the Establishment Clause, the employer would have to be considered part of the government. And the employee’s religion would have to include the doctrine of someone-else-needs-to-pay-for-my-contraception-or-I-will-go-to-Hell.
In other words, this contention isn’t just wrong-headed. It’s dumb.
If you made this argument in a law school class, even a left-wing Critical Legal Studies law professor would probably give you an F. And this is the Attorney General of the Commonwealth of Massachusetts speaking.
It’s a good thing that Healey doesn’t have to present this matter before the U.S. Supreme Court herself. Can you imagine an otherwise totally sympathetic Ruth Bader Ginsburg gently trying to explain to her during oral arguments the basics of Constitutional Law 101?
But enough of Healey’s bad lawyering. Let’s talk about Healey’s bad policy-making. Here are some points that good policy-making should address:
1. Contraception is not health care. It’s a lifestyle decision.
2. Contraception isn’t that expensive. If you want it, you can pay for it yourself. You don’t need someone else to pay for it for you.
3. Contraceptive chemicals may be harmful to women’s health. It isn’t proven, but there’s a lot to suspect, and it makes sense, given the radical effects they have on a woman’s body. Is it actually pro-woman to be pro-contraception? Caveat emptor.
4. Religious people who object to paying for someone else’s contraception aren’t trying to impose their religion on someone else. They’re trying to live their own.
As an example:
It is not the position of the Roman Catholic Church that Catholics shouldn’t use artificial contraception because it violates some disciplinary rule of the Church, like eating meat on Fridays during Lent. The Roman Catholic Church’s position is that using artificial contraception is immoral for everyone, Catholic or not, because it separates sex acts from their purposes, which according to the Church are unity and procreation.
Knowing that and doing it anyway with full consent of the will is something the Church considers a serious sin, of a road-to-Hell variety.
It’s also a serious sin, according to the Church, to materially cooperate in someone else’s use of contraception.
Disagree with the Church’s teaching?
That’s irrelevant to this case. It matters that some people believe it, and believe it on religious grounds. If that’s the case — and it obviously is — then there’s an obvious First Amendment religious-liberty argument (“… prohibiting the free exercise thereof …”) against forcing them to participate in something that violates their religion.
The Trump Administration added another component Friday, allowing non-publicly-traded employers with moral objections (as opposed to merely religious objections) to contraception to not provide it in health plans.
This decision is not only correct, it’s an imperative.
Morality, if it is universally applicable, ought to be accessible to everyone who can start with reasonable assumptions about life and reach logical conclusions from those assumptions. In other words, it doesn’t depend on revealed religious doctrine. Arriving at moral decisions is possible for everyone, even if our moral lenses sometimes get cloudy.
But even if we end up disagreeing on certain matters of morality, it is vital to a free and open society that we respect each other’s point of view and, as much as is morally and practically possible, make allowance for each other’s point of view. That means we ought to respect other people’s conscience.
That includes not telling people who have moral objections to contraception that they need to pay for it.
In this country, if you like your contraception, you can have your contraception. But you shouldn’t be able to make someone else give it to you.
