Subsidized Birth Control and Matt Walsh’s Dubious Theory of Rights

Midway through ranting that women who want birth control should take personal and financial responsibility for their sex lives rather than “sit around and whine for free birth control,” Matt Walsh makes a curious statement of principle, or “philosophical and constitutional reality,” as he confidently calls it. I’ll spare you the all caps that he uses:

You don’t have a right to a product that must be provided to you through governmental coercion of a third party.

If Walsh meant that you don’t have a right to force other people to buy products for you, or that governmental coercion is a poor means of providing you with products, he phrased this sentence quite oddly. If, as he wrote, he meant to deny a right pertaining to a product, then he’s implying a questionable theory of rights.

What if a product can be provided to you without governmental coercion? Do you then have a right to the product?  If so, what is the basis of that right?  It can’t be your need for it or the possibility of satisfying it, because those conditions can be present where there’s governmental coercion.

With or without governmental coercion, you need water, food, clothing, shelter, and other life necessities, but according to Walsh, you don’t have a right to these goods if the government has to coerce someone into providing them to you. Your need for them and their availability to you do not establish your right to them. Or if either or both of these conditions do establish a right, the right vanishes under the condition that it must be provided to you through governmental coercion. Is your right to basic human needs so relative?

Maybe Walsh would say the right lies elsewhere, that you have a right to purchase available goods and services in the free market, assuming you have the means to do so. There’s no right to a product, per se, but there is a right to participate freely in the market. This, however, wouldn’t work with his stated principle either. If we include in “governmental coercion” the system of laws that recognize private property claims and underlie their exchange, then most products are provided through governmental coercion, albeit in a way that’s invisible.

I assume that Walsh isn’t against such laws, but then, if so, he doesn’t fully buy his capital(-ized!) reason for opposing government-subsidized birth control.

Kyle Cupp is an author and freelance writer. Follow him on Twitter, Facebook, and his website.

Please do be so kind as to share this post.
TwitterFacebookRedditEmailPrintFriendlyMore options

299 thoughts on “Subsidized Birth Control and Matt Walsh’s Dubious Theory of Rights

  1. First, if it’s really all just coercion anyway… can I have your stuff?

    Second, if some forms of coercion in fact are more tolerable or justifiable than others, let’s consider the alternatives, and talk about which forms we might find more preferable or defensible, and why.

    Conservatives find the birth control mandate objectionable because of its specific-performance-ish aspect: It seems to demand not just higher compensation from the employer, but higher compensation of a particular kind. And they find that in-kind compensation morally objectionable. (I don’t find it objectionable for their moral reasons, because I’m pro-choice. But let’s at least set out the argument clearly.)

    Now, if we take away the in-kind aspect of the problem, the claim that remains is something a lot like “all women of reproductive age are underpaid by just this much.”

    That’s a singularly odd claim too, isn’t it?

    Report

      • So, um, you’re okay with people dying of bubonic plague in the streets?
        Because last I checked Nixon signed into law something that forces hospitals to treat folks in the ER…

        (Yes, Jay and Maribou, I do realize that bubonic plague isn’t terribly deadly).

        Report

      • Let’s be very careful about language, though.

        Some rights, as the term is commonly used, are certainly of the type that force someone else to provide something for you. And we don’t necessarily find them objectionable.

        I’m thinking here of things like voting rights, or the right to be informed of one’s rights, or the right to trial by jury. Only a few very hardcore libertarians object to the last one, and I certainly do not. On the contrary, I think it’s foundational to a good justice system.

        The proper term for rights like these is civil rights: They are said to exist not out of some claim based on human nature, or on a hypothetical perfect society, but on the putative bargain we have all struck in being citizens of the United States.

        The question then becomes: Should civil rights extend beyond those that touch on government procedure and fair treatment by the state? Should they extend into the economic sphere as well?

        The problem with extending civil rights to include, say, birth control, is that doing so either requires a state-run birth control dispensary, or it requires specific performance by private individuals, who — unlike government functionaries — are not bound by oath to carry out the laws of the land in person.

        There are pros and cons to economic civil rights of various kinds. I don’t think all of them are equally objectionable. In particular, I would not mind seeing the sort of negative income tax or GMI that would make every bit of the current, unfortunate debate disappear forever.

        Report

      • I’m thinking here of things like voting rights, or the right to be informed of one’s rights, or the right to trial by jury.

        I’m going to push back on these. The latter two, in particular, are not positive rights, but restrictions we place on the government’s power. You can’t just go down to the courthouse, ask for a lawyer, and receive a free legal consultation. But the government can’t throw you in prison without a trial, and it can’t have a constitutionally acceptable trial unless you have legal representation. Which is to say, you don’t have a right to an attorney—you have a right not to be imprisoned without legal representation. If the government doesn’t want to pay for your attorney, all it has to do is stop trying to prosecute you.

        I don’t consider voting an individual right at all.

        Report

      • In particular, I would not mind seeing the sort of negative income tax or GMI that would make every bit of the current, unfortunate debate disappear forever.

        I think you’re being far too charitable here. If we had a GMI, leftists would complain that:

        1. It’s not high enough, and
        2. It’s not fair that women have to pay for birth control out of their GMI when men don’t.

        Report

      • Kazzy,

        Good question. What BB viewed – sarcastically – as being “too charitable” actually struck me as probably the correct description of the hypothetical. Some “leftists” undoubtedly would complain about that. Probably the exact same “leftists” who are complaining about excluding birth control from the mandate right now. So while he’s correct, in my view, it seems to miss the point/beg the question.

        Report

      • Jason, out of interests why do some very hardcore libertarians object to trial by jury? The only reason I can think of is that jurors have to give up some of their time during the selection process and the trial, which can be an inconvenience but isn’t quite the same thing as being drafted into the army. The last time I checked, a belief in limtied government doesn’t mean that all civic responsibilities are negated.

        Report

      • This seems like a reason why, while a basic income is something we should all agree to do, it’s not right to think that it should replace all forms of welfare guarantees. There will be certain qualitative guarantees (probably education, probably at least certain health care treatments) that we’ll want to preserve, and it will make sense to have specific subsidies for them, or even provide them in kind through the government. (More broadly, it’s a separate question from minimum living standards whether significant government involvement in health care would make sense from a cost and efficiency standpoint, so that possibly it would make sense to separate health care from any basic income scheme that’s ultimately adopted).

        Report

      • Here’s Murray Rothbard:

        If no force may be used against a noncriminal, then the current system of compulsory jury duty must also be abolished. Just as conscription is a form of slavery, so too is compulsory jury duty. Precisely because being a juror is so important a service, the service must not be filled by resentful serfs. And how can any society call itself “libertarian” that rests on a foundation of jury slavery? In the current system, the courts enslave jurors because they pay a daily wage so far below the market price that the inevitable shortage of jury labor has to be supplied by coercion.

        Report

      • I’m concurring with Tod’s opinion on Murray Rothbard. Jurors aren’t exactly happy to be there in many circumstances but they usually take their job seriously regardless of the inconvenience. The other thing is that the only other possible systems besides judge only trials is having the litigants pay the jury. I can think of so many things that could possibly go wrong, it shouldn’t even be considered.

        Report

      • Lee,
        “But, judge, I really want to serve! It’s my civic duty!”
        “Sir, you’ve been dismissed from the pool. You may leave”
        “Judge, can’t you empanel me in a case? I really don’t want to see my relatives this Christmas…”
        “Jury duty is for the pursuit of justice, not for avoiding inlaws.”

        Report

      • You nailed it. The involuntary use of the jurors’ time.

        One possible option is to pay the jurors significantly more, but that could lead to a professionalized juror class, which would no longer be representative of the accused’s community. Which would defeat one of the goals of the jury system.

        Report

      • “Precisely because being a juror is so important a service, the service must not be filled by resentful serfs.”

        It must be that he’s proposing raising pay significantly, no? What else makes sense given this sentence? (Not saying that’s a good idea, I’m just trying to get to what he’s actually trying to get to here.) I mean he’s not saying it’s so so important but because paying jurors well might make them less representative of the people and that might undermine our reason to have juries, therefore it’s a doomed idea, so… oh well: verdicts from the bench for everyone, is he?

        Report

      • , we could require that employers pay their employees on jury duty for a full days work. Unemployed people would be presumed to be working an eight hour a day, minimum wage job.

        Report

      • But that doesn’t solve the (admittedly small) problem.

        First, the worker isn’t working at his preferred job, which is not an entirely trivial problem. Jury duty can be very boring, or it can be horrifying, or it can be unpleasant in other ways that one’s ordinary job isn’t.

        Second, the employer still loses the benefit of the worker during the jury’s service.

        These aren’t world-ending problems, necessarily, and jurors can usually excuse themselves in advance if they have problems with triggering. But still, a certain variety of libertarian is exceptionally punctilious about these matters, even to the point of questioning the institution of the jury. Which otherwise has overall been a force for good, to my mind.

        Report

      • In Singapore, we don’t have jury duty, but we do have national service and we are usually called up for a few weeks every year. Because a given person is taken away from their job for some significant period of time, the employer need not pay the employee for the time he is not at work. The government makes up the difference so that national servicemen do not take a hit to their paychecks

        Report

      • Circular logic aside, this doesn’t really answer my question. You guys consider food to be a basic human right, too, but you have no problem with people buying their own food. Yet if an employer opts not to provide women with contraceptives and they have to purchase them out of pocket, this is seen as some kind of crime against humanity.

        It’s worth noting that health insurance never (AFAIK) covers condoms, and no one seems to have a problem with this.

        Really, I kind of suspect that this is mostly about the symbolism. Employers who decline to provide contraceptive coverage (for women) in their health insurance plans are perceived as engaging in “slut shaming” and that simply must not be tolerated.

        Report

      • You guys consider food to be a basic human right, too, but you have no problem with people buying their own food. Yet if an employer opts not to provide women with contraceptives and they have to purchase them out of pocket, this is seen as some kind of crime against humanity.

        This is because employers get a benefit (you know non-taxable compensation package) for providing health insurance that they don’t get for providing food vouchers. If the employers were simply willing to give people extra money or a voucher to spend on the exchange that were refundable, I don’t think anyone would care.

        It’s that they’re claiming they’d provide health insurance while not meeting the standards that makes it the travesty.

        Report

  2. I don’t like to think of a lot of the general welfare stuff the government does as a “right.”
    It may be justifiable, it may be a “good” but it is not a “the government has to do this or the government is BAD.”
    I like giving both sides the wiggle room of “Is this a good policy” — it seems like saying “rights” is putting more “I believe this really strongly, and you’re bad if you don’t believe this” into the picture.

    Report

  3. It’s pretty obvious that he meant that you don’t have a right to have the government force someone to buy or otherwise provide goods and services for you.

    Report

      • Brandon,
        Yeah, if we’re taking this merely out of the realm of “government must” then I’m good.
        I prefer to leave it in the realm of “government may” where we can put a higher threshhold on coercion than on gov’t providing the service itself.

        Report

    • Possibly, although the two claims are different. That I have a right to X does not mean that I have a right to use government coercion to obtain X. And that I don’t have a right to use government coercion to obtain X doesn’t mean that I do not have a right to X.

      Report

      • Exactly. Walsh is confusing a sufficient condition with a necessary one, it seems to me. The fact that government provides X isn’t evidence that there is no right to X.

        Report

      • While I am probably on the same or at least a similar side to you on the charter/voucher debate, it does seem worth nothing that most people who oppose them do so universally. I don’t know anyone who has argued that charters/vouchers should be restricted in the same way that access to education used to be restricted.

        Report

      • How are those conversations related to denying black children access to white schools?

        It seems to me that the problem that needs solving will eventually turn into a situation where government is the monopoly supplier and will force out competition.

        Now, this is not me saying “there are no problems that need solving!!!”, I’m just saying that the solution of the government will evolve and evolve again and we’ll have discussions about how it’s not fair that people have options other than the one available to everyone.

        Report

  4. So does government have the right to regulate health insurance at all? Does it have the right to say, for instance, that it must cover child-hood immunization? A colonoscopy when you turn 50?

    Either government does have the right to regulate it, or it doesn’t. And if it does, there’s no reason that contraception couldn’t and shouldn’t be one of the things it requires, since women’s reproductive health and overall health are bound up in their reproductive organs and cycles.

    Now, I am going to get all PC on us all here: These conversations, talk like Walsh’s, is really, really offensive to me. I had the same issue with Jason’s post on SSM and the marginal birth rate. In each and every case, we’re discussing women and their bodies, and doing so in a way that suggests their own choices and opinions don’t take precedent. Women, by law, have the right to decide if they want to use contraception, and can do so in accord with their religious beliefs — nobody is forcing the pill or an IUD on them. But this whole notion that we should outlaw contraception or that we shouldn’t be forced to pay for it is not rooted in the modern world; it’s rooted in a world where women are sluts if they don’t behave properly, and in a world where the decisions about their lives are made by men.

    This conversation is rude because its weighted by that past (one that sadly clings to the Catholic Church, and I also find that offensive.)

    I have the right to consent. It may be a sin for some given some religions, but it is not a crime.

    I have the right to contraception.

    I have the right to decide if I want to remain pregnant.

    And as a woman, my health and well being are interwoven with my reproductive organs, this is — for the vast majority of women — their primary health care concern.

    These things have already been hashed out by our legal system. And it’s really offensive that Walsh thinks it okay to talk about me and my rights in a way that pretends they’re still up for debate. It’s really offensive that he thinks his religious beliefs can and should violate my 1st amendment right to not hold or share that particular set of beliefs.

    Every single time I hear these arguments, I hear the weight of centuries of misogyny pulling on the words; and it is rude and inconsiderate, as if women are lesser, and not fully human in some way.

    Report

      • there wasn’t really anything ‘wrong’ with it; Jason is one of the few people I trust to have a least thought about the civil liberties of others, and to weigh his writing with that consideration.

        I made much the same point on that thread, too: that when we’re talking about birth rates, birth control, etc., we’re talking about women. He focused on the marginal subset of births that might happen were SSM 100% illegal; that’s an okay discussion. But it is marginal, and if there’s some big push to increase the birth rate, recognizing where that discussion’s going to fall matters. Having that discussion as if the women carrying/delivering all those babies, and raising most of those babies aren’t already in the room with a basic set of rights is troubling; it’s a frame rooted in the past where women where chattel and not their own people.

        My point is, really, how easy it is to slip into that ancient frame as we discuss birth rates and contraception; and this is a tendency I think it’s important to push back on, at the very least with some acknowledgement that comments like Walsh’s sit there; and his remedies translate to imposing his religious views on my existing rights.

        Report

      • I should add that I’m very troubled by that aspect of Jonathan V. Last’s argument myself. Who, exactly, will be bearing the costs of this desired extra fertility? And if they don’t desire it, isn’t that relevant?

        I wrote off these costs very temporarily myself, though, because I thought it might be a good idea to show that the benefits were also both speculative and probably very small.

        Report

      • I understood that; and that’s why I at least tried to make this point on your post without too much finger pointing; you were examining a small slice of the issue, and you were pretty clear about that.

        And as I said, I pretty much trusted that you got the larger issue of who bears the burden of the birth rate.

        Also, it’s not any individual conversation, necessarily, but that the weight of them all step above women as fully human. Like there should be this sustained response of, “Wait a minute, women already have these rights. . .” that’s almost always not heard.

        Even more disturbing, the arguments happen in a way of controlling women’s behavior; it’s rarely framed as incentives. That’s pretty telling to me.

        Report

      • And if they don’t desire it, isn’t that relevant?

        Last says, repeatedly, throughout the book, that people who don’t want kids shouldn’t have them. The goals outlined in the book is to not let societal factors get in the way of having kids, strive for people having as many children as they want (which isn’t happening), and to promote a culture where children are more desired. Not to push children on people who do not want them.

        Report

      • The goals outlined in the book is to not let societal factors get in the way of having kids, strive for people having as many children as they want (which isn’t happening), and to promote a culture where children are more desired. Not to push children on people who do not want them.

        Isn’t this a little different from really just standing aside to let people pursue whatever is their preference? Obviously, it all depends on what it ends up being in practice, but as a matter of signaling intention, doesn’t this point toward trying to influence people to have kids? A person who thinks they are just trying to get people to want kids can tell themselves they’re not pushing kids on people who don’t want them. But really, how do you push kids on someone who doesn’t want them? So it it seems like a lot of things could fall under the former umbrella for a motivated person.

        Report

      • So if we want people to have kids we can

        a. make birth control illegal, expensive, or difficult to obtain

        b. make raising children less of an economic burden by subsidizing child care

        One of these things is about telling women what to do. The other are incentives to help families.

        Report

      • Will and Mike,
        To take a real world example, a first world government has paid for television show that seems to encourage incest. [I believe the theory was that guys liking girls that were cute like a little sister was to be encouraged.]

        Report

      • …To be clear, there are a lot of things that could fall under that bolded section that I’d be perfectly fine with, and that wouldn’t think involved trying to adjust people’s preferences, but instead simply facilitating them. In particular, that which falls under ‘s “b.”, provided it’s structured right (i.e. trying not to have in your-face If You Have A Kid You Get A BUnch Of Bucks, If You Don’t You Don’t policies in place). But stated as it is, IMO trying to “promote a culture” points toward a place where people end up feeling that their native preferences aren’t thought to be the most preferred ones. (Which I have less of a problem with in some cases than others, but here among the most strongly since I think having kids you don’t really want to have is bad for everyone involved – the parents, the kid to some extent, and the community/country/world.)

        But it really all does depend on what that effort consists of.

        Report

      • Last’s suggestions run a gamut. He doesn’t oppose “bribery” on principle but argues that it is ineffective. I thought he was too dismissive, but he had an empirical argument and my response was “It’s worth trying because different things are going to work differently on different groups of people.” He wasn’t against all of it, though. He does favor things that would make parenthood cheaper from relaxing some safety regulations to finding ways to make college less costly and less necessary.

        On the social front, he did want to persuade people on the margins but that is qualitatively different from forcing anything on anybody. Some of them involved cultural shifts like encouraging telecommuting and the like. Less density, more religion and more affordable family housing. Cultural shifts that make parenthood less unattractive. Things that push against the prevailing winds that are presently persuading people to delay parenthood and/or settle for fewer children than they want.

        Ultimately, though, the “solutions” section was generally pretty short. He explained that, at the end of the day, the demographic problem was not solvable.

        A lot of this is going to rub people the wrong way, and he is a conservative making mostly conservative arguments (with some favorability towards immigration and some government levers) but it’s an entire book that amounts to a lot more than withholding contraception (which I do not recall him advocating).

        For my own part, I haven’t decided if his underlying thesis is correct – that we are indeed facing a population shortage, and that this is going to cause serious economic problems – but if it is, I do think it a worthwhile topic (which is, of course, one of the reasons I read the book).

        Report

      • A lot of those things certainly overlap with (not particularly social-outcome-directed) preferences of my own, so I imagine there’s the potential for some agreement there, depending on the issue of presentation. Can a lot of the argumentation for some of those shifts be broadened out to a vision of urban/suburban livability that has less burdensome parenting as a happy consequence, but where that very consequence can be described in the context of that broader view of livability? The less the campaign for those changes had to name natality as an aim, the more easily I’d be brought on board.

        On a separate note, as you’ve mentioned it a number of time, what is the basis for this idea about people having fewer kids than they’d like? I’m not challenging it, but I’m curious how the factoid is generated. Is it just testimonial? Presumably if you ask a group of people, some number of them will always tell you that if they made a lot more money, they’d like to have more kids. That seem literally inevitable outside of an agrarian setting where kids *equal* more money. So is the issue that it’s on the upswing? Is the view that this *drives* lower fertility, or could it just be an epiphenomenon – such as perhaps a kind of wistful thought to another time that may not reflect real down-and-dirty preferences? (I admit that latter is a very speculative interpretation; I’m reall just curious about the nature of that data claim.)

        Report

      • I’d add to your question about people who’d like to have more children:

        What subset of these people are those who’ve waited too long for stable marriages/careers/etc., and fertility is a problem? The inevitable ticking clock women live with?

        Report

      • …For some reason I read less density as more density. So less overlap than I thought, since that’s what sounded most attractive to me. But still some.

        Telecommuting is great, but it seems like it’s something that’s going to be a limited part of the working arrangement for the foreseeable future. So – less density? I think this comes down to preferences about where to raise kids, as I certainly don’t view density as unattractive for that part of my life (should it ever arrive), assuming that housing policy accommodates it. Why would we look to build more commuting miles – costing time and money, the very scarceness of which being (a big part of) what makes raising kids so stressful, or so I imagine – into our plans. I can see having different views of that based on your views of where you’d like to raise your kids, but, if that’s the case, why push in one direction or the other?

        Report

      • He points towards the difference between desired fertility, which is the vague estimate of how many children a people think is “ideal” though he notes that it is a vague figure. He also points to “expected” fertility… how many children they plan to have at the outset. Nothing iron-clad there, though on an anecdotal level at least there does seem to be a disparity. My wife and I are an example, having downgraded expectation from 3 to 2 due to life and circumstance.

        With regard to density, we tend to think of people choosing where to live at least partially on expected family size. Last argues that causation goes both ways and that people are likely to have more children where it is easiest to have them (and afford them). He cites Levittownas an example – and goes into its history – of a community designed specifically towards making child-rearing less daunting. Which tends towards lower-density arrangements. This is also his rationale for telecommunity, as it will allow people to live in places conducive to larger families. I don’t recall him arguing for policy measures on either front, though in the case of the former he may have voiced support for policies that favor home ownership.

        Report

      • Of course, what makes parenting less burdensome in a given place will depend on what arrangements are like there to begin with, which in turn will have influenced/determined the patterns and approached parents have adapted to fit them. If everyone has a car, then that assumption will go into figuring out what would make parenting easier. If that’s not an assumption, that changes whether (and for whom) a trend like decreasing density eases parenting. I’m sure he recognizes that to an extent.

        Report

      • so then one of the things that would help increase the birth rate is eliminating the penalties on women who have to take time out of careers to have children. There is a life-time cost to this, and it’s not trivial. A woman who goes to college and then has to establish her career before having children is pushing that clock; but if she waits to start the career part after college, her potential for having a career is significantly diminished, for example. And time off to have children lowers her life-time earnings.

        Another would be eliminating the stigmas on father’s for participating more fully in the rearing of children, a problem you are all too familiar with.

        I go back to my basic premise on this: it’s all logic rooted in entrapping women into have children instead of creating incentives. And that entrapment mentality is, I firmly believe rooted deeply in the old-world view of women as not-quite fully realized humans, but incubators for the next generation; people who’s lives can and should be governed by needed babies and that utility first; the other aspects of their lives should be secondary.

        I know that’s a bit extreme; but it’s such a common assumption underlying these discussions that it merits constant politically-correct pointing out and pushing on.

        Personally, I don’t buy the more-births needed arguments at all; I think they’re bogus. Yes, we may have a few difficult years as we support the bulge of aging people now, but to suggest endless growth is needed (and that’s where that logic leads) is evil. That’s my religious belief. Stability and balance, that respects the fact that humans are not the only species here, and that humans depend on other species, and they have rights to resources, would be my belief in a nutshell.

        Report

      • There’s a bit of a conflict here. On the one hand, we want women to be able to take time off and work more flexible schedules to take care of children (or other pursuits, though family is at the root of a lot of it). On the other hand, the more flexibility we give the more likely the gender gap is to grow because women will more likely take advantage of it than men (even if we offer it to men, or outright encourage them). Which is why some of the more progressive-minded nations when it comes to things like leave policies also have huge gender gaps. On the other side, of course, are those who proclaim to value women taking care of the kids and yet see no problem with women being penalized for doing so.

        I was honestly disappointed with Last’s disinclination to even throw a hat-tip towards our own family formation. Not surprised, of course, but disappointed. It seems to me that flexibility might be encouraging to families like ours to have more kids. He views things through a certain prism, though. There is actually a notable lack of sturdy relationship between how progressive-minded a nation is on women’s rights and the fertility rate. Some gender-progressive countries have higher birth rates, and of course some gender-regressive ones do.

        To me the ultimate question is whether or not the birth dearth exists and is an economic problem. It seems to often align with views on unrelated issues (the environment, family formations, lifestyle choices, etc.). To me, it’s going to be a problem or not on the basis of things that have little to do with all that. I’m going to be keeping an eye on Japan and Germany. Since they’re well ahead of us on this issue, we should get a better idea of what, if anything, the damage will be. Those who are worried fear it will be too late, but we’ll still have more time than they do.

        Report

      • Japan and Germany as indicators suggest cultural problems — not enough replacement to sustain our culture — which suggest the problem he’s getting at is not enough white babies in the US, no?

        That strikes me as a racist framing, not a human framing. It’s the fear that the Republican demographic is dying out, really. So I think you’ll understand why i might take issue with it.

        And of course, I whole heartedly agree with you on your family formation. I’ve said it before, I’ll say it again: you are one of my heros.

        Report


      • there is the issue of side constraints. Let us agree that making birth control available and affordable for everyone is a worthy policy goal. It does not follow that it is permissible let alone obligatory to implement policy X just because X is the most efficient way to making birth control affordable and available to everyone. X might involve something impermissible. In the specific case of ACA, it requires a sort of specific performance that forces people to violate some deeply held moral norm they have. To do this is to treat people as mere means to our ends, and it is impermissible to do this to anyone. At the very least the burden of justification for doing so is so high that only severe moral catastrophe could overcome it. The inability of some women to afford birth control may be all things considered bad, but it is not severe moral catastrophe. Coercing specific performance from conscientious objectors is the sort of thing which requires is or very nearly so impermissible.

        Report

      • , it’s pure slut shaming. What or how someone else does, if it’s legal, has no bearing on your relationship with your god, it’s between them and theirs.

        Hobby Lobby had no such concerns when it came to how they invested the company’s retirement plan. Profiting from ‘abortion producing’ contraception (which it isn’t) is okay, just not providing it?

        Contraception — reproductive health care — is central and essential to women’s health and well being. It’s not some extra that’s optional. And it’s between her and her physician.

        Report


      • If it has nothing to do with the employer don’t make the employer specifically provide it for you in kind. That X is a necessity does not make one’s employer liable for its provision even if it so happens that employers are otherwise legally obligated to provide other similar services. Once you bring employers into the equation, then you cannot legitimately object when employers have an over-riding interest in not providing said service or product. It is not slut shaming to refuse to cover contraception on the insurance. The mere fact that “promiscuous” women may be disadvantaged relative to men or “non-promiscuous” women does not constitute slut shaming. The effect is incidental regardless of the particular intentions of the employer. People have an overriding interest in not being forced to participate in activities that they find deeply morally objectionable. For example, if I were to refuse to cover contraception for my employees, I would not thereby be saying anything about the alleged promiscuity of said employee. Same way if I don’t cover chemo for smokers, I am not saying anything about the smoking habits of any specific employee. I may express disapproval of smoking, but that does not constitute the shaming of any given employee who happens to smoke. Same thing with contraception. The mere expression of disapproval of contraception and the mere refusal to directly or explicitly participate in its provision does not constitute an instance of slut-shaming. For any given act to be an instance of slut shaming, it must at the very least through word or action explicitly refer to the alleged sexual conduct of a particular person.

        Report

      • If your beliefs suggest some or all forms of contraception are wrong, I would never, ever insist that you use contraception (even though it goes agains my belief system).

        But I’ll say this again: contraception is essential to women’s health. Period.

        The kind of contraception she opts for is a private decision; one made considering her needs and health. Some women can’t take the pill, and might opt for an IUD. Some might have reason (drunken sex or rape) to need the morning after pill. These are all 100% legally available forms of health for that woman to access.

        The HRSA-supported health plan coverage guidelines, developed by the Institute of Medicine (IOM), will help ensure that women receive a comprehensive set of preventive services without having to pay a co-payment, co-insurance or a deductible. HHS commissioned an IOM study to review what preventive services are necessary for women’s health and well-being and therefore should be considered in the development of comprehensive guidelines for preventive services for women. HRSA is supporting the IOM’s recommendations on preventive services that address health needs specific to women and fill gaps in existing guidelines.

        Source: http://www.hrsa.gov/womensguidelines/

        It includes a recommended services.

        Now people can crow all they want about this; but it’s not their business. It’s essential health care. And I agree with the above statement 100% — gaps in the guidelines. If you like, I’ll provide a link to the actual IOM study that documents the gaps in women’s preventive health care, where these recommendations came from.

        But this isn’t about someone else’s religious freedom; it’s about their right to impose their beliefs on female employees.

        Report

      • You’ve got it the wrong way around. How am I imposing my beliefs on my employees when I don’t provide them with insurance that covers contraception? Am I stopping them from buying it with their own money? Am I threatening to fire them if they do purchase such insurance elsewhere? In fact if I were to be forced to provide insurance that covers contraception, is it not the employee who is imposing her beliefs on me?

        Report


      • Let’s do an analogy. Blood transfusions are a medical necessity. People who get into accidents and are suffering from severe blood loss and people who go through major surgery need blood transfusions. If my employer, a Jehovah’s Witness refused to provide insurance that covered blood transfusions, he should be allowed to do so. He is not thereby imposing his beliefs on me. It would be different if he were to threaten to fire me if I did get a blood transfusion. If he were forced to cover me it would be us who are imposing our beliefs on him.

        Report

      • Now people can crow all they want about this; but it’s not their business.

        It’s not your business, and it’s not mine, and it’s not pundits’ and it’s certainly not the government’s. A job’s compensation package is the employer’s business, and the employee’s, and nobody else’s.

        But I’ll say this again: contraception is essential to women’s health.

        So is food. Do you believe that employers should be required to buy food for their employees, or is it sufficient to pay them money which they can then use to buy food on their own?

        How did the belief that no one should ever pay out of pocket for health care become one of the central dogmata of leftism?

        Report


      • The inability of some women to afford birth control may be all things considered bad, but it is not severe moral catastrophe.

        Please define “severe moral catastrophe”.

        I think has ably been pushing back against the idea that the inability to access contraceptives is indeed a moral catastrophe: “contraception is essential to women’s health. Period.” Do you disagree?

        It hasn’t been put in these terms in this discussion thus far, (and this gets at ‘s question, “How did the belief that no one should ever pay out of pocket for health care become one of the central dogmata of leftism?”): health care is a human right. How Article 25 of the Universal Declaration of Human Rights puts it,

        (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
        (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

        The left believes in a broad(er than libertarians tend to) conceptualization of human rights, including economic, social, and cultural rights. Health care certainly fits. (How this is ultimately delivered is more open to discussion, so “no one should ever pay out of pocket for health care”, employee mandates, single payer, etc. that specific stuff is not necessarily linked. But given how the US health care system is structured today and given a belief in health care as a human right, it makes sense to severely limit accommodations the Obamacare baseline’s including contraceptives.)

        People have an overriding interest in not being forced to participate in activities that they find deeply morally objectionable.

        Are there boundaries to this? When does the overriding interest transform into a trump where society is obligated to respect it, or can a community/society/government not overcome this “overriding interest” obstacle?

        How near to the disapproved activity is participation? Say a Quaker objects to their taxes going towards the Department of Defense, do they get their money back? Say an environmentalist objects to their tax dollars going towards fossil fuel company subsidies, do they too get a veto or refund?

        I think you’re use of specific performance is overbroad in this thread. The employer provides insurance the US government has set minimum standards for (including access to contraceptives). It is up to the employee to decide whether they’ll make use of those services. The specific performance commanded is meet the baseline, not for Hobby Lobby to perform the medical procedures for using contraception.

        Report

      • “contraception is essential to women’s health. Period.”

        So it has to be provided as part of the non-monetary benefits of employment instead of as part of the monetary benefits of employment because…why?

        Report


      • Two points, first what I said above, “But given how the US health care system is structured today and given a belief in health care as a human right, it makes sense to severely limit accommodations the Obamacare baseline’s including contraceptives”. (For the record, this is not my ideal solution, I’m for single payer and/or UK NHS style health care provision. Congress in it’s infinite wisdom passed Obamacare instead.)

        Second, my understanding is Hobby Lobby is free to stop providing insurance, pay the tax, and have their employees go onto the state exchanges (where employees will have access to contraceptives coverage). Thus there’s already a route to accommodate Hobby Lobby’s conscience.

        Report

      • Murali,
        all due respect, but many employers are local monopsonies in their given field. In which case, you’re asking everyone who gets a Nursing degree to have to pay some extra cost, because their employer has some strange belief.
        I’m against this for practical reasons — not paying for blood transfusions is likely to result in medical bankruptcy (or at least high debt — which is what insurance is supposed to avoid by spreading out the risk).

        Report

      • It has to be provided through health insurance. If health insurance is part of the benefits an employee provides, that insurance has to provide the minimum preventive services people require.

        The requirement is on the minimum insurance; and employers don’t get to discriminate against some people’s health care needs because 1) they’re women and 2) they continue to believe they have a religious right to tell women how to conduct their sex lives.

        Report

      • Libertarianism, cutting edge for the 18th century.

        Why cite the UDHR? Well it’s just the the foundation of the International Bill of Human Rights and also progenitor of the widely ratified major human rights conventions (ICCPR, ICESCR, CEDAW, CAT, CRC, and CERD). I’m not a religious person so “holy” is a bit far for me. I would say the core texts of the international human rights regime are among the most important developments of the post-WWII international system.

        Now, do tell me about the widely ratified human rights instruments closely aligned with the libertarian outlook.

        Report

      • Circular logic aside, this doesn’t really answer my question. You guys consider food to be a basic human right, too, but you have no problem with people buying their own food. Yet if an employer opts not to provide women with contraceptives and they have to purchase them out of pocket, this is seen as some kind of crime against humanity.
        It’s worth noting that health insurance never (AFAIK) covers condoms, and no one seems to have a problem with this.

        Really, I kind of suspect that this is mostly about the symbolism. Employers who decline to provide contraceptive coverage (for women) in their health insurance plans are perceived as engaging in “slut shaming” and that simply must not be tolerated.

        Report

      • Please define “severe moral catastrophe”.

        Moral catastrophe would be something on the order of an existential threat to society. Perhaps if some people were permitted to continue doing what they were doing it would cause sufficient social instability or perhaps it makes us vulnerable to foreign invaders or perhaps it exposes people to widespread rights violations.

        health care is a human right. How Article 25 of the Universal Declaration of Human Rights puts it,

        The UN’s declaration of it does not make it so. The UN declares water to be a human right but that does not mean that we should not charge people for water. Efficient water allocation policies would involve finding ways to create and sustain markets in water. People will actually use water more efficiently if they have to pay for it. At least some of the set of rights enshrined in the UDHR and similar documents lack theoretical plausibility. Under the most plausible theoretical understanding of what rights people have, that set of rights is just extremely poorly specified.

        I already find the regulation of compensation for employment by the government prima facie problematic. If it was just providing patients with a voucher which they could use to purchase any sort of insurance they wanted, the issue wouldn’t be so bad. The analogy I like to draw is between buying a dish containing meat for my friend and lending my friend money which he then chooses to buy a dish containing meat. I am slightly uncomfortable doing the former. I am not uncomfortable doing the latter. Even though they have identical effects, the former places me directly in a chain of purchases that increases the demand for killing animals for food. Whether I am purchasing insurance which I then give that person or whether I give that person money which she then uses to purchase insurance really does matter. It is not unreasonable to think that it can place some people objectionably close to the supply chain.

        Report

      • When I was in my early 20’s (and on the pill,) I had many months where I had to make a choice between that $30 for my prescription or for food. My health insurance never covered it. And it’s not good to take the pill some months and not others, that’s not how it works.

        After I had my first kid, I got mastitis in my right breast. My health insurance would have covered for surgery to cut out the blockage and infection, but not for a few sessions with a lactation consultant to help me learn how to manage it on my own.

        The same insurance that would have paid for my husband’s prostate exams, erectile dysfunction, or STD treatment, did not pay for my annual pap smear, which my doctor required before filling a prescription for the pill.

        And I want to point out that this was one of those old ‘golden plans,’ that pretty much covered things without questioning. More stingy plans were less likely to include coverage for female reproductive health, not more.

        If stuff was essential to both men and women, was generally covered, if something was innate to being male, it was generally covered. But if it was the lady parts. . . pay out of your own pocket.

        Now I get that the ‘status quo’ is often the accepted norm, and changing that state is disruptive and prone to causing all sorts of consternation.

        But women’s primary health care concerns typically stem from their reproductive cycle. It is the only reason a lot of health women ever bother to see a doctor. So you may think I’m suggesting the employers are slut shaming, but that’s not the case. The norm this is pushing against is slut shaming. That was the status quo for centuries.

        I think it’s about the 1st. Those companies do not have a moral right to impose their religious views on women and the primary health concerns women have in the name of those old standards rooted in slut shaming. I realize their religious beliefs say that many of the things women might do are immoral; so they, as individuals, have not need to participate; they don’t need to use contraception. But to suggest that they have a right to impose that view on others is a violation of their employees first amendment rights.

        Report


      • you have no problem with people buying their own food.

        I don’t have a problem with the state buying food either, SNAP, WIC, etc. are fine by me. I also don’t have a problem with people buying contraceptives. In fact, like food, I think access to safe contraceptives is so important we ought to set up structures to ensure individuals are assured safe, affordable options.

        So I’m going to be a pedant right here. Crime against humanity has a real meaning. I acknowledge lack of health care is not a crime against humanity (death camps, slavery, torture, those are crimes against humanity). I do, however, consider lack of access to health care to be a human rights violation worthy of positive government action to remedy.

        I was interested in what threshold was using for his “severe moral catastrophe” standard. I would define lack of access to adequate health care as a severe moral catastrophe. Especially because given inadequate or insufficient options people will resort to unhealthy and unsafe options – people may do permanent harm to themselves in efforts to control their reproductive health. And I don’t think bankruptcy as a plan for meeting health needs is the route to go; I think, Murali, you’ll have a hard time selling that to the electorate.

        Really, I kind of suspect that this is mostly about the symbolism.

        cites the Institute of Medicine, “HHS commissioned an IOM study to review what preventive services are necessary for women’s health and well-being and therefore should be considered in the development of comprehensive guidelines for preventive services for women.”

        Coverage of contraceptives is not some off the wall thing, some bizarre desire I plucked out of the air. I’ll accept the judgment of medical professionals (roughly, “this is important preventative care”) and of women (roughly, “this is important to my autonomy and well-being”). And thus to me, of sufficient importance to be included in the baseline standard.

        I’m not sure if you do, but why do reject the testimony of medical professionals and (many) women that access to contraceptives is that important?

        Report


      • If health insurance is part of the benefits an employee provides, that insurance has to provide the minimum preventive services people require.

        “Has to?”

        When I was in my early 20?s (and on the pill,) I had many months where I had to make a choice between that $30 for my prescription or for food.

        I’m torn between two responses. One is to suggest that you’re implicitly assuming that if the insurer pays for your contraception that won’t affect your pay. At the extreme, you could be ensured contraception, but you still might be having to choose between using that $30 for food or for rent. The other is to note that choice due to scarcity is just part of the human condition, and to demand a human right to not have to make such choices only creates a requirement that somebody else pay the opportunity cost so we don’t have to pay it ourselves.


        … Hobby Lobby is free to stop providing insurance, pay the tax, and have their employees go onto the state exchanges…Thus there’s already a route to accommodate Hobby Lobby’s conscience.

        That this is proposed without any hint of irony is ample demonstration of how perverse the issue has become. And I mean perverse in the technical sense, that this is a perverse incentive. Would we really prefer that Hobby Lobby provide no insurance rather than some insurance? This kind of all-or-nothing thinking is completely foreign to me. This is where it seems to me that pure ideology has taken hold, and real pragmatism has been cast aside.

        Don’t get me wrong. As a legal matter, I’m doubtful Hobby Lobby qualifies as religious enough that their claim for an exception must be respected. They’re a business, not a non-profit, a charitable organization, or a small sole-proprietorship. It’s not the legal question I’m addressing here, but the logic of your political position.

        And I’m with Murali on the UNDHR. Or better put, I’m with Hannah Arendt, who said she’d much rather have the rights of an Englishman than human rights.

        Report

      • The kind of contraception she opts for is a private decision; one made considering her needs and health…

        Now people can crow all they want about this; but it’s not their business.

        I agree with the sentiment behind this statement, but as a point of fact this is no longer true. The moment that the government mandates that an employer provide a specific set of health services, this is no longer a private matter between patient and health care provide. The nature of the ACA, and of employer-provided health insurance in general, necessitates the involvement of the employer and of the government.

        Personally, I would much prefer a system where people are paying for health services with their own money (subsidized in the cases where a subsidy is needed), because then it would really be a case of “mind your own business.”

        I happen to believe that Hobby Lobby and most of the conservative objections to the birth control part of the mandate are examples of trolling. However, if the government orders you to do something, you have the right to object and make your case through the legal system and through the political system, which is exactly what Hobby Lobby is doing.

        Report


      • why do reject the testimony of medical professionals and (many) women that access to contraceptives is that important?

        I call foul. I don’t see that anyone here has denied the importance of contraceptives.
        Disagreeing with someone about the proper means for ensuring X does not imply thinking X is not important. It’s a nice way to try to gain some moral high ground, but at the cost of making a dishonest statement of the other side’s argument.

        Report

      • Murali,
        hm. your definition of severe moral catastophe seems lacking.
        Slavery, either as practiced in America or in Thailand, seems just fucking fine.
        (in fact, slavery probably helps with keeping class boundaries intact. but that’s just my supposition).

        Report


      • Would we really prefer that Hobby Lobby provide no insurance rather than some insurance?

        To be clear, I’m not stating that as my preferred outcome. Hobby Lobby says their conscience blocks them from purchasing insurance that includes these four contraceptive methods, deeming them abortifacients. So given that circumstance, I’m ok with the accommodation that assures employee access and says to Hobby Lobby pay the tax instead. To me that’s better than giving employers power to carve out whatever religious exceptions they please and burden employees with their employers religious convictions.

        Again, were I building all the pieces of the machine, my preferences would result in a different dynamic altogether.

        Bradon Berg says, in part, “Really, I kind of suspect that this is mostly about the symbolism.” I replied in part (emphasis added), “I’m not sure if you do, but why do reject the testimony of medical professionals and (many) women that access to contraceptives is that important?” Maybe I should have worded the question differently, in fact re-reading it, there’s a mistaken “do” on my part in the section you quote back to me.

        So, properly written “why reject the testimony…” It seems a reasonable inquiry to make given the allegation that the dispute is “mostly about the symbolism” and not about the representations made by doctors and women as to what constitutes preventive medicine, women’s well-being and autonomy.

        You, Murali, and I are going to disagree about the role, significance, and “theoretical plausibility” of the UDHR. Just for the record, the UK voted in favor of the UDHR and the UK has ratified the ICESCR. Englishmen have accepted the turn towards this broader conceptualization of human rights. In fact, Englishman built the NHS in post-WWII austerity Britain – accepting what Beveridge called a “comprehensive policy of social progress” well before some of the human rights instruments called for it (NHS founded 1948, UDHR 1948, ICESCR entry into force 1976).

        Report

      • Murali,
        Not covering preexisting conditions is a human rights violation for women.
        C-sections from prior pregnancies (including after menopause) have been considered “preexisting conditions” and thus a reason for the damn insurance company to deny coverage AND pocket the money you’ve already paid (because you didn’t disclose it, because who the HELL would think that was a preexisting condition. And you coudln’t get insured if you did mention it anyway).

        We’re talking 1 in 6 women in America here.

        Report

      • Hobby Lobby says their conscience blocks them from purchasing insurance that includes these four contraceptive methods, deeming them abortifacients. So given that circumstance, I’m ok with the accommodation that assures employee access and says to Hobby Lobby pay the tax instead. To me that’s better than giving employers power to carve out whatever religious exceptions they please and burden employees with their employers religious convictions.

        But Hobby Lobby wants to purchase some insurance for their employees, and you completely disregard that. Instead, you say “if you want to buy them some insurance, you must buy them a complete package, as we define it.” Perhaps a better solution would be to let their employees buy a supercheap government insurance supplement that covers contraceptives?

        But that binary approach–they’ll do it all or we’ll not let them do it at all–strikes me as the very essence of how ideology kills subtlety and thoughtfulness.

        Again, were I building all the pieces of the machine, my preferences would result in a different dynamic altogether.

        I get that. So would I. But that doesn’t justify making really bad arguments to justify what we have.

        Report

      • A lot of people here seem to be assuming that women’s contraceptive is some cheap thing they pick up off-brand at the Pharmacy. And it is…95% of the time. The reason it needs to be covered under insurance is the other 5% of the time, where something odd is needed. People who buy $10 a month pills are *not* the people who need contraceptives in their health insurance. Contraceptive is a medical issue, and hence can be *really expensive*.

        Exactly like *all* medical insurance, in fact.

        So let me ask people agreeing it’s a human right, and saying that women should just buy it, are you actually suggesting that women get paid a few hundred dollars more each month so that, if they need that sort of contraceptive, they can buy it? (Or maybe companies could take a few dollars from everyone’s paycheck to cover that, and put that in a pool to cover the more expensive ones. Or, instead of the company having to do that, they could get some third party to do that…oh, wait.)

        Or are you people suggesting that only 95% of women need contraceptives?

        Or maybe you think they should just buy *their own* insurance to cover contraceptives. But there’s a reason we don’t sell *individual medical items* insurance…people who need them would buy the insurance, people who don’t wouldn’t. You can’t buy ‘heart insurance’, you can’t buy ‘knee insurance’, and you can’t buy ‘contraceptive insurance’. Because only people who have heart problems, knee problems, or expensive contraceptives would buy it!

        Luckily, we’ve already solved this problem. We’re now requiring *everyone* to buy insurance policies that cover basically all medical problems. Hey, look at that.

        The actual problem here is half the people here seem to think buying contraceptives is like buying food or something, that there is some fixed, low amount that women can pay to get contraceptives. (For some reason, they think this despite it being unlike how *any* other aspect of medicine works.)

        Report

      • An inadequate plan can come with costs all their own. For example:

        Some people’s employer family insurance plans allows inclusion for spouses only if their spouse cannot get insurance through their own work.

        Most people don’t know precisely what is on the plan – or what they have an option for – until after they take a job. Without some minimum of what we can call insurance or non-catastrophic insurance or whatever, it makes situations like that more likely.

        If insurance is available to you through you employer, you lose eligibility for subsidies in the exchanges if you were otherwise eligible.

        For contraception, some of these are solvable by other means than a contraception mandate (which is partially why the contraceptive mandate may be shot down), but on an abstract level “Either offer a decent health care plan or let them to go the exchange markets” does seem reasonable.

        (There are questions about the exact nature of PPACA and how they may have taken the above calculus and failed to actually make it work within the above context. The more I read away from here about the PPACA-contraception mandate, the more vulnerable to court action it actually seems.)

        Report


      • But Hobby Lobby wants to purchase some insurance for their employees, and you completely disregard that. Instead, you say “if you want to buy them some insurance, ou must buy them a complete package, as we define it.”

        Didn’t you *just* finish saying:
        One is to suggest that you’re implicitly assuming that if the insurer pays for your contraception that won’t affect your pay. At the extreme, you could be ensured contraception, but you still might be having to choose between using that $30 for food or for rent.

        If Hobby Lobby buying contraceptive insurance *lowers* an employee’s pay, then Hobby Lobby *not* buying health insurance at all raises their pay, by definition.

        So, no, Hobby Lobby buying insurance that doesn’t actually cover a specific medical condition is *not* better than it not providing insurance. Better to just give the employees the money directly, especially since the subsidies only kick in if the employer *doesn’t* provide insurance.

        Perhaps a better solution would be to let their employees buy a supercheap government insurance supplement that covers contraceptives?

        Which lets everyone who doesn’t have the specific medical condition of being ‘a fertile female’ not buy it, and lets the people who have cheap birth control just buy that directly. So the people who actually *buy* that supplement are only the people who have expensive birth control. Making that ‘insurance’…not actually be a shared pool, and rather expensive.

        Of course, by ‘supercheap government insurance’, perhaps you’re imagining the government subsidizing it. Or, in other words, you’re imagining the government essentially paying for contraceptives for people.

        Yeah, that’s a real workable solution you’ve come up with there. I’m sure there will be no objections to that.

        Report


      • the very essence of how ideology kills subtlety and thoughtfulness.

        I don’t think it is ideology that is at fault, I think it is litigation. I don’t think a court has the freedom to craft an opinion that does all the accommodating you provide for. The courts have far narrower questions to answer. Is this or that threshold applicable? Does this religious freedom claim meet this threshold?

        The way you put it, the supplemental policy, partial employer payment, etc. that’s stuff for a legislature. Or put it this way. Do you think you could craft a SCOTUS opinion in reply to the questions presented to the court that does what you say? To my mind, litigation is a blunt instrument that frequently results in all or nothing outcomes.

        Which is part of the reason for emphasizing, I wouldn’t start from here, but given X, Y, and Z, then I believe this A follows.

        Report

      • on an abstract level “Either offer a decent health care plan or let them to go the exchange markets” does seem reasonable.

        Or at least not blindly ideological. This was my first-blush reaction to the claim about ideology as well. Under ACA, while indeed there is an employer mandate, the policy preference for people getting insurance through an employer – and especially the imperative for it from a welfare (as opposed to a budgeting) perspective – is relatively weak. It’s primarily a measure to restrain the costs of the exchange subsidies. Therefore from a welfare perspective the preference for employers offering insurance at all may in fact not be that strong, especially if it means failing to get key benefits to people the law is designed to help (because of religious consciences, or, under James’ argument simply divergent preferences, of employers).

        So it’s not blindly ideological from a welfare policy perspective to prefer in this rather small number of cases that a place like Hobby Lobby which would frustrate what is seen to be a key benefit of the law to simply opt out rather than offer insurance which the employee would then have to supplement with out of pocket expenditures to gain the benefit meant to be given, given that the point of the law itself is to give people affordable options in the health insurance marketplace that meet their medical needs, and employees of firms who make that choice then can avail themselves of the mechanism the law set up to do exactly that.

        Instead, it’s just regular old policy-priority tradeoff. Isn’t it?

        Report

      • The left believes in a broad(er than libertarians tend to) conceptualization of human rights, including economic, social, and cultural rights. Health care certainly fits.

        That is great. However, may I suggest that we spend some time addressing the world that is and not just the world that you want it to be.

        I self-identify roughly as a libertarian, but I tend to believe that libertarians often rely far too heavily on the distinction between negative and positive rights. As a result, you get this back and forth where libertarians maintain that justice demands that governments protect individuals from harm, but make no claim on individual freedom otherwise and progressives argue that justice demands a much more expansive set of protections and entitlements no matter the higher cost to individual liberty and self-determination.

        That is an interesting conversation, but it’s mostly academic. As a simple matter of fact, there are a set of trade-offs that happen when you go from a set of minimal government guarantees to a more robust set of entitlements. One of the things that happen is that many more things become politicized. The more the government intervenes, the more political arguments you are going to have about the nature of that intervention.

        More to the point, when the government starts making more and more demands on individuals and private firms, those individuals are going to push back with their own demands. A lot of what I’m getting here is a bit of “how dare Hobby Lobby not just shut up and comply. It’s the law!” And yes, it is the law, but in a democratic society people have a variety of means to challenge the law and seek redress when they feel that they’ve been wronged. And that’s what is happening here.

        When everything becomes a political right, then everything becomes political. This is the world that you wanted. Why complain about it?

        Report

      • when the government starts making more and more demands on individuals and private firms, those individuals are going to push back with their own demands. A lot of what I’m getting here is a bit of “how dare Hobby Lobby not just shut up and comply. It’s the law!” And yes, it is the law, but in a democratic society people have a variety of means to challenge the law and seek redress when they feel that they’ve been wronged. And that’s what is happening here.

        You do recognize that this particular law is the result of decades of effort, people seeking redress for when they’ve been wronged?

        Report

      • I’m not sure how that goes against anything that I’ve said. In fact, it supports it.

        There is some population of people that felt wronged by the lack of mandated coverage and that group of people took political action to get the law changed. They were successful, but now another group of people feel that they are wronged by being forced to subsidize something with which they disagree. Now those people are taking political action.

        If we are going to rely on government to solve these issues, as opposed to looking for non-coercive private sector means, then these issue will become political. There is really no way around that.

        Report


      • I agree with this bit of your 10:48 comment, “if the government orders you to do something, you have the right to object and make your case through the legal system and through the political system, which is exactly what Hobby Lobby is doing.” I don’t object to Hobby Lobby having their day in court.

        I’m not saying everyone should just shut up and obey the left. Though, of course, it would make politics a whole lot easier for me and various positions I value if the world worked that way; living in a self-governing political community means havin arguments about this stuff. And I’m also not saying Hobby Lobby shouldn’t get its day in court, just like people who thought the employee mandate was unconstitutional deserved their day in court. I’m making an argument as to the substance of the dispute, not saying: don’t dispute these things. I’m saying, the Supreme Court ought to do X not Y.

        may I suggest that we spend some time addressing the world that is and not just the world that you want it to be.

        Well there’s value in both. So the world as it is sets all sorts of limits, and may steer towards a kind of incrementalism that can be tactically useful. But the world as I want it to be points to overarching considerations of what is Right, Just, and Good. Without those broader considerations, what would my incrementalism, my underlying values, or underlying goals be directed at in the first place? Leaving the conceptual analysis out entirely leaves me rudderless (and obscures deeper disagreements). I’m not sure any position can exist without pointing to some image of “the world you want it to be” as well.

        And thus a debate, competing sides offering their competing conceptualizations of what is Right, Good, and Just. With you offering the critique, for instance, of a “higher cost to individual liberty and self-determination”. With the left offering that the libertarian construction of human rights is incomplete and inadequate, leaving people without a firm politico-legal demand of the state for Freedom from Want.

        I don’t think it is just an academic debate – I think this dispute, the contours of rights, is a major fissure in any sort of durable left-libertarian coalition. There are certainly values that kind of resonate with one another in a potential left-libertarian entente cordial, but important cleavages remain.

        There’s a significant example that is in this thread. Zic says “Now people can crow all they want about this; but it’s not their business.” That resonates in a certain way when said on the left. It holds out the prospect of being a note of agreement between the left and libertarians. And then observe how Brandon Berg deploys the same words to read the government out of it, “It’s not your business, and it’s not mine, and it’s not pundits’ and it’s certainly not the government’s. A job’s compensation package is the employer’s business, and the employee’s, and nobody else’s.”

        I’m not saying Zic offers olive branch and Brandon Berg shoots it down. I’m saying, this same formulation “not X’s business” can mean dramatically different things depending on your conceptual priors.

        …many more things become politicized.

        I’m curious as to what you imagine non-politicized or de-politicized looks like. Resource distribution, who gets what, when, where, and how, what kinds of demands the community legitimately makes on the individual, the appropriate level of deference to individual conscience… to me, politics covers a significant domain. Answering questions with libertarian preferences doesn’t make these issues suddenly not politics. It would still be politics, it would just be the case that libertarians would have their preferences enforced rather than those other political philosophies prefer. I don’t think there is a not politics way of doing this.

        Report

    • – I loosely self-identify as a libertarian (Voluntaryist actually) and I agree that you have the right to consent… about everything, IMO. So it strikes me that the core premise of Matt’s article is really about consent. Do the employers who buy healthcare for their employee’s compensation packages have a right to consent as well?

      Report

      • Yes. But HobbyLobby can just Not Buy Healthcare for their workers.
        Is this mildly discriminatory? Yup. Don’t care, we ain’t forcing them.
        [I am in favor of various and sundry discriminations to provide a better community — for instance, diverting research dollars towards robotics in order to reduce slavery.]

        Report

      • Sure.

        The consent to being employers.

        The consent to providing insurance.

        They consent, as people, in their own choices about using contraception, sex, etc.

        But they do not have the right to consent or not or their employees; and since health care is highly personal, if the employee’s choices conflict with their own, the employee’s consent would be primary. The employer can opt out of offering insurance or sell the business if they have a conflict here; but they are no different from share holders of publicly traded companies — there is a a corporate wall that protects their personal interests; that membrane should protect the employee’s interest, too.

        The seeming potential for conflict here — the employer’s moral compass being applied to the employee’s health care — would go away if there was no connection between health insurance and employment, btw. That’s the thing that Hobby Lobby might want to be working on; severing that ball and chain which makes them have to participate in things that violate their conscience.

        Report

      • Murali,
        So are you okay with mandating contraceptive access for local monopsonies? Please bear in mind that we probably do want to incentivize homeownership and people staying in one place long enough to provide a stable environment for childrearing.

        Report

      • About the only monopsony employer I can think of is academia and that is in the field of philosophy. In any given area there are usually multiple hospitals/clinics etc. There is also supplemental insurance where you can just buy a policy that will sells the stuff not covered under your own. And since America has a fairly forgiving bankruptcy regime, I don’t see the problem with declaring bankruptcy if you are American (compared to how it is in lots of other places in the world where declaring bankruptcy is a blight on your reputation and results in garnishment of wages etc.

        Report

      • “And people can work somewhere else which does give them the package of benefits they want.”

        Sure, and if the Green family/Hobby Lobby wanted their religious principles reflected in their corporate structure, they could stop being a for-profit business and instead become a church. Is this option not available to them? If it is, why have they not chosen it?

        Report

      • Murali,
        not terribly relevant. Those clinics are owned by the hospitals (or the larger organization). Economies of scale are bringing more hospitals/clinics/doctors under one organizational roof.

        Report

  5. If the government is offering special privilege to drug plans as a form of remuneration, such that their is an economic benefit to the employer to provide this form of remuneration over additional monetary compensation, then I’m okay with the government dictating that the privileged form of remuneration can’t be skewed to artificially benefit men over women (or vice versa). The result of excluding the pill is to make it artificially more expensive (being paid for by monetary remuneration that doesn’t have special tax protections) than other drugs.

    Clearly, the proper libertarian solution is single payer.

    Report

    • Clearly, the proper libertarian solution is single payer.

      While I don’t agree with “proper”, I’m pretty sure that I recall the libertarians on this board saying something like “divorce health care from employment! Gah! Single payer would be better than *THIS*!”

      Report

    • Yeah, this is a detail I’ve never quite understood. Why don’t the objecting companies simply stop offering insurance or offer insurance-lite and give up the subsidy (or eat the penalty). It seems that companies like Hobby Lobby want to be excluded from ACA penalties without having to offer the minimum ACA benefits, which isn’t exactly a conscientious position.

      Report

      • Yes. Given that simply not offering health insurance is an option, I don’t think the argument that this is a matter of religious freedom has much credence. The companies aren’t being forced to provide birth control.

        Report

      • IIRC, Hobby Lobby’s previous insurance (pre-ACA) covered birth control. Or maybe I’m thinking of one of the conservative think tanks.

        Strangely hypocritical lawsuits are no respecter of party, of course, but I do find it darkly amusing how the health care cases have turned out. (One of the mandate lawsuits originated with someone who, in the interim, racked up medical bills they were unable to pay due to unforeseen circumstances. While it was never an argument in court, I suspect the government’s attorney was tempted to point and say “See? Right there. That’s why. Because they’re never paying off that bill, that’s why. Society’s stuck with it. They made our case for us.”.

        Report

      • No, you are indeed thinking of Hobby Lobby. They ‘accidentally’ provided contraceptives without noticing. Or, rather, didn’t care until the Republicans wanted to invent an issue.

        Not to mention that *more than half* the states already required contraceptives in health insurance, including some rather red states, like my state of Georgia. My state didn’t even offer a *religious exemption* from that. (O.C.G.A. § 33-24-59.6, look it up.)

        Granted, no one had to *have* insurance in the first place, but you didn’t hear companies that provided it complain.

        I often find myself completely amazed how easily history is rewritten, and something that was commonplace suddenly becomes outrageous.

        Report

  6. Limited government advocates arguing against the contraception mandate in the ACA have me mightily confused. Unintended pregnancies cost taxpayers billions in public expenditures for health and social services programs. Is it not preferred that government set policy that uses taxpayer dollars as effectively as possible?

    There are several minimum standards required of healthcare plans under the ACA. Though I’m no healthcare expert, they strike me to be designed primarily to drive ultimate taxpayer costs down – through fewer trips to emergency rooms, preventive care, etc.

    If taxation is coercion and a policy leads to fewer tax dollars being required, isn’t the mandate trading one coercion for another less onerous one?

    Report

  7. through fewer trips to emergency rooms, preventive care, etc.

    That is under contention, to say the least. We’re not sure whether insurance increases or decreases trips to the emergency room, most preventive care costs more than it saves, etc.

    Report

    • Will, when you say “most preventative care costs more than it saves” I think you’re being inaccurate. We can measure the costs of polio, diptheria, and lyme disease. Ditto the cost for readmits after a heart attack. Preventative care can be as simple as “do you understand what you need to do once you leave the hospital?” (and then walking people through it until they get it).

      Report

      • Some preventive care saves lots of money. According to NEJM ” the vast majority reviewed in the health economics literature do not.” At the least, PPACA makes no distinction as saving money through preventive care isn’t the goal. Delivering preventive care is.

        Report

      • Will,
        What’s the cite on that? I want the full article!
        Lowering readmits is a great way to reduce costs, as you’re providing treatment (and medicine) in a less expensive zone (the non-hospital).
        [Now, is that preventative? Dunno.]
        I think that there is a lot of difference between preventative care for a condition like diabetes (where you’re preventing hospitalization), and “purely preventative care” (healthy individual getting counseling on how to lift weights).

        Report

      • Will – It’s not just about saving money, though, is it? Even if screening more people for a rare disease led to higher costs, if it saved the lives of several people because their disease was detected earlier, don’t we need to factor that in?

        After all, if one guy’s illness wasn’t discovered until after his death, then he’d have no health care expenses related to it, and the cost would be lower than if he’d had treatments that detected the disease earlier and saved his life. I don’t think we want to calculate things on that basis.

        I do agree with the broader point that some types of preventative care are more effective than others, and that we should differentiate between the more-effective and less-effective types rather than just emphasizing more preventative care across the board.

        Report

      • Will – Okay, I see from the article that they are calculating things in terms of cost-per-quality-of-life-years saved, not just overall cost.

        So yes, I agree that we should be trying to prioritize things that are more cost-effective in those terms.

        Report

      • KMW, it honestly depends on what we’re talking about. If we’re talking about “saves money” versus “doesn’t save money” then dollars is what counts. If an argument in favor of preventive care is that it saves money, then we should look at the bottom line. If it costs money that doesn’t actually mean that it’s a bad idea just as long as we’re clear on the economic effect. Cancer treatment, for example, may be a net cost. But it’s still something we want to do (when medically indicated and when we can afford it). It just means we have to argue in favor of it on moral grounds rather than the effect it will have on the bottom line.

        Report

      • Will,
        There are multiple critiques I could make of the article — but I think the most salient is that this analysis is effectively striking at a moving target. Yes, we have decreased screening for mammograms (and pap smears) because we can target the more disease-prone folks.
        (also, I think some of the secondary prevention is what the Candidates might call “keeping people well” — giving someone insulin, say… That’s still a Treatment, but it enhances wellness)

        Report

      • “Even if screening more people for a rare disease led to higher costs, if it saved the lives of several people because their disease was detected earlier, don’t we need to factor that in?”

        Have you had a breast-cancer exam lately?

        Report

    • Will – insurance certainly decreases trips to the emergency room made by people who are uninsured and have to be cared for regardless due to EMTLA. The hospitals are not absorbing those costs, so those costs end up being transferred to others – either directly to taxpayers for government run hospitals or by indirectly through higher costs to insured patients at private hospitals.

      On preventive care, I’m all for a data-driven assessment of what preventive care saves money and what doesn’t. It is certainly true that reality doesn’t always align with intentions, but the intent of the minimum requirements for healthcare plans as designed is clear to me and I still contend that the “liberty = low taxes” folks should see the intended ends as something they’d favor.

      If the ultimate objective is less of my money going to pay for some other person’s stuff, both more effective government and less distributed costs through higher insurance premiums are both ends worth pursuing.

      Report

      • insurance certainly decreases trips to the emergency room made by people who are uninsured and have to be cared for regardless due to EMTLA.

        Yeah, but if they’re ensured and going to the ER more frequently – and we’re all in the insurance pool – that’s not really a gain. The issue is stacking those who go to the ER because they can’t go a primary care physician against those who were foregoing care and letting things pass but since they are insured are now going to the ER.

        Report

      • I’m game to see how the data comes in once we have some experience with how ERs are used now that the ACA is in place. No doubt there are those now seeking medical care – in the ER still perhaps, but just as likely in a doctor’s office – who were letting things pass when the costs were prohibitive due to the lack of insurance. I’d think that to be a temporary effect though, since after the initial bolus of care deferrers came through the system you’d longer have this pool of “sick, but not sick enough for the cost” people building up, now that these people are insured and all.

        Medical services are at core an inelastic good, so I don’t buy the idea that demand for healthcare is somehow going to surge and then sustain at a dramatically higher level just because it is more affordable to procure. People won’t just start chemo because the price has come down.

        Report

      • I agree with this very much:
        Medical services are at core an inelastic good, so I don’t buy the idea that demand for healthcare is somehow going to surge and then sustain at a dramatically higher level just because it is more affordable to procure. People won’t just start chemo because the price has come down.

        To put it another way, lack of a method for paying for health care has meant delayed care or ER care; a form of rationing.

        Report

      • As far as the data goes, ER visits went up in Massachusetts after Romneycare became law. The question is whether or not that rise has continued, abated, or reversed. It’s hard to get a clear answer (both sides of the debate have reports to cite) and it’s not clear whether any subsequent drop that may have occurred is actually a result of the law passed several years prior.

        Aaron Carroll (well left-of-center and generally supportive of PPACA) has written about this on a couple of occasions, essentially saying that yes it will lead to more ER utilization and no that’s not the end of the world..

        Report

      • I suspect that the long-term uninsured, people who’ve never had insurance, do not actually know how to use the medical system correctly.

        And, hell, I’ll admit it. I’m one of them. I haven’t had insurance for more than a decade, due to insurance companies denying me based on a preexisting condition. I have no primary doctor. Although I was lucky in that I could actually *pay* my medical bills. So if I had a medical problem I’d try to figure out correct doctor, and just go see them. And I saw a cardiologist for my pre-existing heart conditions every few years, semi-randomly.

        Now I have insurance, for functionally the first time in my adult life (I think I had my mom’s insurance until 22, but at that point I was in college and I just did whatever my mom said and she paid the bills.), and I really have no idea how this is supposed to work. I am planning to find a doctor and get a physical at some point, figure out exactly what I’m supposed to be doing. I’m pretty sure I’m due a few immunizations.

        But I’m fairly well informed. I can see people who are not informed basically operating the same way as before. Get sick, go to the emergency room, except now you give them your insurance card and hope that reduces it to where you can pay for it.

        Incidentally, we’ve all seemingly forgotten that a lot of these people have large medical bills at emergency rooms already. Which means that some of them can *only* go to the emergency room, because other places might turn them away. (As with all the consolidation going on, the local places might very well belong to the same system that owns the emergency room, and not be willing to accept patients that already owe the system money.)

        Report

      • , the concept of price elasticity as you’re using it doesn’t seem to distinguish between not buying something because you couldn’t pay that much no matter what, versus being able to pay but prioritizing something else higher, versus thinking something cheap is still over-priced. Not really your fault; the language of economics is just like that. But it doesn’t really capture the reality of the choices people face and the kinds of decisions they really have to make.

        Report

      • It’s a distinction without a difference with regard to what I am saying. Whether it’s purchase prioritization or the basic ability to afford it, people will scale their health care utilization in accordance with how much it costs or would cost them.

        Report

      • I think that’s highly doubtful in the long run Will.

        In the short run people will use emergency rooms more as

        a.) They are in the habit of (themselves, friends and family) getting care there
        b.) They can now go more easily to the emergency room and not worry about avoiding the bill
        c.) There are fewer providers who take Medicaid

        So you see, as in the Oregon study, a short term burst of newly insured people (or newly on Medicaid) going to emergency rooms.

        But longer term, as in MA, there is a small and steady decline in usage of ER’s.

        But Canadian style care would be better for this.

        Report

      • Time will tell. I tend to agree with Aaron Carroll on the subject, that the net result will be more ER usage and that it won’t be the end of the world. I think that’s less controversial for health care on the whole, seeing as how allowing more people to utilize more health care was one of the aims.

        Report

      • Will, time will tell indeed. While I consider red state pols spiteful asswipes for rejecting Medicaid expansion, it does at least set up a kind of natural experiment. In a couple/few years we should have a much more robust data set from which to judge these sorts of things.

        Alsotoo, perhaps the market/providers will respond with more of the less costly urgent care clinics.

        Report

  8. Being able to diagnose pain over the phone is going to have awesome applications to telemedicine, particularly if it helps eliminate some of the problems with self-report.

    Report

  9. I’m not going to get into the broader libertarian arguments over whether taxation is theft; I’ll say that I utterly disagree with them and leave it at that.

    But I don’t see why coverage of contraception is being treated as an un-square-able circle. There’s got to ways of compromising. (I was under the impression that one had been created the last time people were arguing about this issue – companies can leave out contraception coverage and pay an additional fee to the government.) Perhaps if you allowed people to opt out of their employer’s health-care plan and have the money that the company would have spent on their health insurance go into the person’s salary instead? Then they could use that money to buy a different plan on the exchanges, since the point of the exchanges is to provide affordable plans.

    Or, even without changing the current laws, can’t companies who feel strongly about contraception simply choose not to provide any health insurance plan at all and attract employees by paying them higher wages instead?

    Report

    • Yes companies could just not provide HI and boost their employees wages to compensate. They have that option. I know people, my wife being one, who opt out of their employers HI but for some strange reason don’t’ get a bump in wages. That would seem to be a thing we and companies would want people to be able to do though. But yeah HL has choices.

      Report

    • “I was under the impression that one had been created the last time people were arguing about this issue – companies can leave out contraception coverage and pay an additional fee to the government.”

      As we’ve seen, there are many people whose attitude is that this is an unconscionable violation of women’s rights, slut-shaming to the extreme, and they honestly would prefer to see an employer not provide healthcare than to see an employer provide healthcare that doesn’t include contraception.

      Report

      • Also, if you want to make actual points against Obamacare (not saying that you do, just if), I think you’d be better off citing the increase in slavery… Looking at rights that we can actually agree on makes a far more telling point.

        Report

      • “they honestly would prefer to see an employer not provide healthcare than to see an employer provide healthcare that doesn’t include contraception.”

        You “honestly” seem to misunderstand the objection. Hobby Lobby is arguing that they are being forced to violate their religious conscience by providing contraceptive coverage to their employees. They are arguing that because of this, they are entitled to relief under the RFRA.

        The folks you are responding to are pointing out that if their religious objections are so strenuous, they don’t need an exception to the mandate. They can, if they so choose, opt out of providing insurance entirely.

        No doubt that is not a wise decision, business-wise, seeing as they would pay the penalty and receive nothing in exchange but legal compliance.

        But this does change it from a “I don’t have any options” argument to a “I don’t like any of my options” argument. Strange, then, that this is the argument being embraced by Libertarians.

        Considering their hostility to ACA in general, though, maybe not. As Jonathan Chait wrote recently, “You don’t take your barbecue reviews from people who think meat is murder.”

        Report

  10. The thing that stuck out to me with Walsh’s piece was this:

    “See, you can’t back me into a corner with this liberty thing. I’m not afraid to take my convictions to whatever extreme and unlikely conclusion you can conjure.”

    If ever there needed to be a poster-phrase for my Ideology series, that would be a great candidate

    Report

  11. This is another instance where trying to view all interactions between citizens and government using only the language of “rights” becomes unnecessarily binary.

    Like conservatives, I don’t like to slap the word “right” on any good thing that we desire. But likewise, trying to slap the word “slavery” on any compulsory action is even more silly.

    This is where the idea of government existing solely for the purpose of protecting a set of negative or positive rights is problematic.

    If we propose instead that government is the tool of the larger set of goals that a majority can set- like the advancement of human spirit, greater unity and kinship among citizens, for example- then it is clear that a certain degree of behavior can be compulsory- like jury duty, or educating one’s children.

    Obviously, this idea can be abused and needs to be balanced against other considerations.

    Report

  12. I’m moving the conversation on ‘insurance has to cover contraception’ down here.

    I’ve been reading the IOM report, something that’s been left out of this discussion.

    First of all, yes, insurance has to cover contraceptives, based on the law.

    PPACA requires basic, preventive services be provided to the insured without cost sharing. That’s in the law. The law also required a study of gaps in basic preventive services for women, and instructed the Institute of Medicine to do a study on those gaps and come up with recommendations. A link to the study is in the right-hand column here; the recommendations on preventing unwanted pregnancies and healthy birth spacing starts on pg. 102.

    http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-for-Women-Closing-the-Gaps/Report-Brief.aspx

    First, it states that 49% of all pregnancies in the US are unintended, and 42% of unintended pregnancies end in abortion. There are many consequences to unwanted pregnancy, many that have a profound impact on the developing fetus, not just on the mother. The report refers to a previous IOM committee on women’s health:

    The IOM Committee on Women’s Health Research recently identified
    unintended pregnancy to be a health condition of women for which little
    progress in prevention has been made, despite the availability of safe and
    effective preventive methods (IOM, 2010b). This report also found that
    progress in reducing the rate of unintended pregnancy would be possible by
    “making contraceptives more available, accessible, and acceptable through
    improved services (IOM, 2010b).

    Holding this debate at the level of employer conscience is really irrelevant, because it is not rooted in the reality of what’s in the law. ACA essentially structures a deal with insurers: as a nation, we’ll mandate that everyone carry insurance, but that insurance has to include certain basic services, among them, preventive care without cost sharing to the insured.

    So no, this is not about the employers rights to provide what they wish as part of compensation, it’s about the basic rights of insured employees to have access to the full range of preventive services. For women, those services include the services to prevent unwanted pregnancies; That is what the law requires. Part of this was eliminating discriminatory gender rating practices. Part is that the high costs of co-payments for prescriptions often meant people went without prescriptions.

    The only reason that the employer seems to have rights (that they don’t have) here is because we’ve mingled insurance with employment; it’s a benefit that is often provided by employers.

    Report

    • Upthread, you say:
      The more I read away from here about the PPACA-contraception mandate, the more vulnerable to court action it actually seems.

      This response to James (same thread) is where I think you might be wrong.

      Report

      • And I would add that allowing exceptions of conscience like this for employers opens the whole employer-provided insurance thing up to, “Well, which services can we leave out to encourage employees to opt for exchange-provided services?”

        Because as you once noted, turning down your employer’s health plan, for whatever reason, doesn’t usually mean you’ll be paid more, does it? That creates some powerful incentive for employers to develop a whole lot of conscience about a whole lot of medically-covered behaviors.

        Report

      • My statement wasn’t actually definitive. I don’t know how vulnerable it is. I do know that I thought it was invulnerable, but the more that I am reading, the more vulnerability I am seeing. If not in the concept of the law, than in its execution. There would be more ways I could defend the constitutionality of the law if the law had framed or handled the issue differently.

        Or put another way, it seems far more likely that it’s constitutional for the government to define what does and does not constitute health insurance, how the government does and does not extend tax breaks, and so on… than it is constitutional for the government to lay it out how the law laid it out in this particular case.

        It could be that both would be considered constitutional. It could be that neither of them would be. I just know that there are some arguments that I cannot make because of the way that the law is structured. And that such structuring matters.

        Report

      • Why did you think it was invulnerable, ?

        After NFIB v. Sebelius, Shelby County v. Holder, now McCutcheon v. FEC, and, for that matter, Citizens United v. FEC I don’t think many liberals were making any such assumptions, regardless of how settled they took the precedent that would uphold their arguments was. It seems to be open season on many precedents in the Roberts court. There’s no reason to presume any policy valued by liberals that has come under credible challenge at SCOTUS but survived in the past remains safe right now.

        Report

      • I should step back a bit on that. The commonality in both cases wasn’t being absolutely sure they would win, but that the government had a solid case the likes of which the court would be way overstepping to come down on the other side of. Which I suspect will be the determination if the court does come down against PPACA here, though I think the case for it having to be overstepping has been greatly diminished over the past few weeks. Arguments that it seemed to me that were scoffed at before are actually making more sense to me and could actually carry the day (and not in a Bush v Gore sort of way).

        I do think (or at least wonder if) this played a role in the very weak case I am hearing from and others that the government put up. That they thought it wasn’t a close call because they had it in the bag and came to it ill-prepared because everyone around them thinks their case is a slam dunk. Perhaps wrongly, that is sort of the impression that I’ve gotten.

        Report

      • Yeah, that’s basically it.
        A lot of times, precedent isn’t remotely as clear as people like to think, and it gets overturned a lot more frequently than people recognize to the extent they think of it as being fairly broad. But that aside, the great failure is that they don’t recognize why certain arguments have appeal to conservatives.

        The NFIB case is a great example, not least because I predicted years in advance exactly how it would play out (yeah, I’m still bragging about that). The commerce clause issue was always murky, and there was case law on both sides. The tax issue should have been a slam dunk. And to this day, I think it would have been a slam dunk…except for the fact that the administration was barely able to argue it because it decided to frivolously and very publicly insist that, no, it’s totally not a tax. They assumed they didn’t need to worry about the tax issue because they just assumed they had no problems under the commerce clause, because liberals have always interpreted the commerce clause as being close to limitless. Which would be all well and good if it weren’t for the fact that conservatives exist at all levels of the judicial system and have developed a line of jurisprudence and scholarship over decades, including in Supreme Court decisions, that would lead to quite the opposite conclusion.

        If you’re going to win in the long run, you’ve got to convince at least some judges on the right – and not just the 5 on the Supreme Court in many instances – that what you’re advocating for is Constitutional. That means meeting conservative arguments head on and showing how your position is consistent with at least some of those arguments. The Administration hasn’t, by and large, done this – they’ve basically just acted as if conservative jurisprudence is made up on the fly and lacks any core principals.

        Which is fine when you’re trying to get talking points across on TV. It’s not so fine if you want to win cases in the courts.

        Report

      • I don’t follow. So you did or didn’t look at the Hobby Lobby case and decide that the government ought to be able to make an invulnerable case (regardless of whether incompetence then prevented them from doing so.) Cuz you said you did. Are you just saying that you think it’s somewhat like the case for the IM in that the government initially somewhat overestimated their case and then underargued it? Those two things are really far apart.

        they thought it wasn’t a close call because they had it in the bag and came to it ill-prepared because everyone around them thinks their case is a slam dunk

        I think this played something of a role in the IM case, though by the time it was in full swing I think everyone knew where things stood and were taking the threat very seriously. Prior to that, there really was a consensus that the mandate should be easily upheld at court. It’s fair enough to say that they shouldn’t have trusted in that, but that was a widespread view, and for that matter i don’t think they ignored the arguments against it when it was clear they were going to be taken seriously by courts.

        And by the time we got around to this case, i really don’t see the evidence that the government was still not taking seriously the possibility that the contraception challenge was very viable. I mean, honestly, after the series of decisions I cite, on what basis could they possibly be thinking there wouldn’t be at least four votes to strike it down, with the deciding vote being Kennedy? What is making you think they didn’t take it seriously other than Mark’s assertion that they argued poorly? It doesn’t make sense for them not to have taken it seriously, and a poor argument isn’t evidence that they didn’t. It’s just evidence (really an interpretation) that they didn’t make the best arguments they could have. Do you have other evidence that even after the previous health care cases and in knowledge of the willingness of this court to take major precedential strides against the grain of liberal jurisprudence they were cavalier about this case’s chances at the Court?

        Report

      • “Barely able to argue” is not the same as didn’t argue at all. It was largely an afterthought argument, and not one they could have pushed as a primary argument given the administration’s statements. IIRC, they didn’t even make it at all in a number of the lower court cases.

        I’m not saying that they don’t take the possibility of losing seriously, either. I quite think they do. I think they don’t take conservative jurisprudence seriously and thus don’t try to address it even though they need to win over at least some conservative judges – and again, not just on the SCOTUS – to their position.

        Report

      • allowing exceptions of conscience like this

        And we certainly can’t let anyone act on their conscience unless it agrees with ours.

        This is one of the things that us making me wary; the attack on rights of conscience. You’re not just not persuading me; you’re effectively driving me further away from any possible agreement.

        Report

      • I believed that the government could and would make a case of sufficient strength that the court would have a hard time shooting it down. Not that they wouldn’t, but that if they did they would have a really hard time of it. Invulnerable was the wrong word, and that was the word I was stepping back from.

        Two-to-four months ago, I didn’t think we would be where we are now. I think a lot of liberals didn’t expect to be here either. I could be wrong about that, but I was mostly getting my cues from them. I don’t read very many conservative blogs and take what they say with a grain of salt.

        I could be wrong that the government did not take this case sufficiently seriously. That’s the impression I got and am going with because I think it’s more likely to be true than that the government’s lawyers are that incompetent.

        Maybe incompetence isn’t right either and their case was never as strong as I thought it was. If so, that’s not an impression I got from conservatives. (I mean, they said the government’s case was weak, but I didn’t believe them.)

        Report

      • They argued it. It didn’t seem like an afterthought to me; it was one of several arguments for constitutionality. They believed in the commerce clause argument and it would have been valuable for it to have won out from the liberal perspective. they wanted to vindicate those arguments (which they thought should be easily upheld under existing precedent), but they recognized that it wasn’t as uncontroversial as they thought it should be, so they in fact advanced the tax argument (as any competent lawyer would have). To have highlighted the tax argument would have preemptively conceded their strong stance on the commerce clause. They didn’t want to do that. but they did advance the tax argument, and did so successfully enough to win.

        (But: I’d be happy to coalesce around a position that this was all pretty much preordained by the political preferences of the judges, their boldness or lack thereof in how much they wanted to confront the president, and the state of conservative constitutional argument at that time. It’s you who’s putting so much emphasis on litigation strategy here. Roberts ultimately didn’t want to strike down the mandate, but also certainly didn’t want to give the left its commerce clause victory. This was the obvious out for him. I’m not saying I could have predicted any of that in advance, but I’m quite comfortable to almost completely dismiss the importance of litigation strategy or argumentative competence of the attorneys – or even the administration – in all of this. It’s almost certain they couldn’t have gotten the law passed if they’d framed the mandate as a tax, so the didn’t – or in any case it’s reasonable to regard the problem of getting it passed as prior to the problem of defending it in court. If you want to defend something in court, you need to come up with the thing you’re going to defend. (By all means criticize them for obfuscation in communications with the public on that, but that’s a different critique). They lawyers were left with what they left with after the politics of getting the thing passed were done with – and they won. But they only won the way they did because it was the obvious path for Roberts to take given that he wanted to head the Court off from the kind of throwdown he would be electing if he were to strike the mandate. It really didn’t matter how good the lawyers on either side were – obviously, since Clement is so much better than Verilli.)

        Report

      • Let me put it this way: to me Verilli just appears to be Verilli. Pretty unimpressive as a general matter, not as a result of (now serially) underestimating the cases against him. I can’t conceive of the possibility that at this point they’re still not taking these challenges seriously.

        My theory about what you were hearing from liberals is that it was righteous argumentation about how the court should find meant to obscure whatever assessment they might really be making about how it would find. I think if you had talked to liberal court watchers, they’d have told you there was every reason to take this challenge very seriously. And again, I don’t see any evidence that the government didn’t. I just see evidence that they don’t have a very good lead advocate. but then again, no one looks particularly good when up against Paul Clement.

        Report

      • You could be right. I’m not going to go back and locate what gave me the impression that I have.

        Even granting that, though, we’re still left with something significant to me. Which is that regardless of the likelihood of success, four months ago I thought that the anti-HL side had a very strong legal case. One that, even if they didn’t win, the courts would struggle to shoot it down.

        Now I don’t. I don’t know whether they will win or not, but it does seem to me that there are comparatively easy grounds on which the court can shoot it down.

        So even if I misunderstood them on the issue of likelihood of victory, they won me over on the merits of the case (in part at least by omitting, flat-out dismissing often in an authoritative manner, or gliding over the substance of the counterarguments).

        Now they haven’t. I’ve switched from “Hobby Lobby is wrong” to “I’m not sure.”

        It’s harder for me to defend the government’s position than it was a few months ago. It’ll be harder for me to criticize the court if they find for HL. It all reads to me like they weren’t taking the court threat seriously when writing the law, interpreting the law afterwards, and defending the law in court. I could be wrong about that, but that’s where I’m coming from, and it’s not an unfamiliar place in recent years.

        Report

      • We’ll have to agree to disagree on that then. So some further support for my position – in the Hobby Lobby case, they didn’t even make an argument about what’s called prudential standing until the 10th Circuit asked for supplemental briefing on the issue.

        Why is that important? Because there are two types of relevant standing: Constitutional standing and prudential standing. Constitutional standing, while not as easy to meet as it once was, is still a pretty low bar, to the point that it’s almost impossible for the business owners to lack it – in fact, there’s substantial clear precedent saying explicitly that business owners possess Constitutional standing. Instead, what generally prohibits business owners from suing based on injuries to their business is prudential standing, and specifically the “shareholder standing rule.”

        In other words, prudential standing is quite literally the most important argument for them to make. And they didn’t even discuss it through several rounds of briefing before the trial court and 10th Circuit until the 10th Circuit ordered them to brief it.

        There’s a whole bunch more, but basically their pattern of actions seems to take the view that the judges are going to rule the same way no matter what they say.

        Put it this way – this is probably the sixth or seventh case where I’ve had the chance to read the parties’ briefs on a contentious issue pitting conservatives against the Obama Administration. In each instance, with the exception of Citizens United, I went in thinking that the Administration’s position was by far the stronger position. In each instance, I came out thinking that conservatives wiped the floor with the Administration on the merits and that the Administration had failed to address the conservatives’ most important points. That doesn’t mean I necessarily changed my mind about the case; it does mean that I had a hard time seeing how the Administration was going to convince any judges who weren’t already predisposed in their favor, while I had an easy time seeing how their opponents were going to.

        Report

      • I’m not clear what were agreeing to disagree about.

        But thanks for the more specific evidence about taking Hobby Lobby lightly. As I said to Will, I hadn’t seen any evidence for it short of mere bad argumentation produced on the thread. This seems like it could be evidence for having taken the case lightly (in my view against all reason), or it could just be more evidence for general incompetence. I’ll think it over.

        I’ll say this: I don’t think it matters that much. The Court is responsible for the decisions it makes, not the counsel.

        Report

    • First of all, yes, insurance has to cover contraceptives, based on the law.

      Ah, law. I wasn’t sure what kind of “has to” we were talking about. So it’s a purely descriptive statement about law, not a normative/moral claim?

      Report

      • Well, I admit my personal preference is the normative/moral claim, but I realize this is swimming against the currents of a male standard (and there was in health insurance and in medical care) and that establishing an equal footing for a female standard, based on women’s actual lives, is and has long been, an uphill battle. It’s only my observation, but the norm is typically male, and expanding that to include other options takes a great deal of struggle, typically accompanied by boatloads of controversy, and once the progress has been made, it generally comes to be seen as a normative/moral claim.

        But in this case, I really did refer to the law, which requires coverage of preventive care without copay, and specifically ordered an examination of the preventive care women needed that were underserved because the norms are male-centric. If preventing unwanted pregnancy isn’t preventive care since it relies heavily on the medical system, I don’t really know what the term means. The only possible way to suggest it isn’t preventive care is based on the notion that men don’t get pregnant. Women don’t get prostate cancer, yet prostate care is included in insurance.

        Report

    • it’s about the basic rights of insured employees to have access to the full range of preventive services. For women, those services include the services to prevent unwanted pregnancies; That is what the law requires

      That’s not really correct, though, is it? First, the law doesn’t require that womem “have access” to preventive services. It requires that someone else pay for their access. Those things are both different, both philosophically and legally. Second, the law doesn’t require employers to pay for those services. It says employers can’t provide any insurance unless they include those services, and they can pay a fee instead of providing any services.

      The casual misuse of language in this debate make me wary.

      Report

      • It requires that someone else pay for their access.

        Is there a double standard here? When it comes to some things, it’s employee compensation. But for other things, it’s someone else paying.

        Report

      • As I note below, we don’t allow employers to simply increase pay sufficiently to cover it, or to let a female employee use it for some other purpose if they prefer.

        Why not? Because “access” is not really what is being demanded here, else that would be sufficient.

        If an actual “voucher” of sorts is so crucially important, why not require employers to provide vouchers for food, instead of just letting them give employees money?

        Report

      • James,

        Contraception is not like any other good out there. All of the effective methods require a doctor’s supervision; it’s not something you can just ‘go out and buy’ like you can go purchase a loaf of bread.

        And for the population most at risk of unplanned pregnancies, the decisions really will be “do I buy food” or “do I buy contraception.” The number one reason for second-trimester abortions, remember, is a woman not having the funds to get one earlier.

        Since contraception is only a small part of the mandated preventative services, it’s only a concern because it’s deemed somehow immoral.

        Upthread, you got all over my suggesting that there might be serious reasons to discourage religious exceptions for employers.

        But I’ve yet to see you get all worked up about the fact that your daughters may well be discriminated against when it comes to access to health care, just in the way your wife was definitely discriminated against, and your mother. The marketplace has long been able to get away with that discrimination because women so needed the care that they would, when they could, pay for it out of pocket, even as they were charged more then men for policies that didn’t offer the coverage we’re discussing.

        Insurance is about spreading out risk; and pregnancy is one of the biggest risks women face. It has been since the beginning of time. It is central to their health and well being. Your arguments are totally selfish and male-centric, rooted in the notion that individual liberty and conscience are separated from the realities of women’s reproductive lives; as if our concerns don’t rise the the same level as a religious employer, who’s able to do business behind the corporate veil that offers protection for his personal assets and life from his business failures.

        I’m done with this. I don’t particularly like being the token feminist here. I’m disgusted by the absolute lack of understanding of the male norms women have to face to be treated equally.

        Report


      • As I note below, we don’t allow employers to simply increase pay sufficiently to cover it, or to let a female employee use it for some other purpose if they prefer.

        As I’ve mentioned elsewhere, that could run to hundreds of dollars a month for some women, and more to the point, I find it completely astonishing that you think the solution to ‘companies don’t want to pay for insurance that includes birth control’ is ‘women should turn in their birth control receipts to the company and get directly reimbursed’.

        Have you not noticed that there is currently a lawsuit out there about churches *signing a statement to indicate they weren’t paying for contraceptives*, on the lunatic grounds that such a thing was a violation of their freedom? How do you think this ‘Companies can just pay for contraceptives’ thing is supposed to work?

        Or are you one of the insanely large number of men who think *all* women can buy the $20 a month stuff at Target?


        And for the population most at risk of unplanned pregnancies, the decisions really will be “do I buy food” or “do I buy contraception.” The number one reason for second-trimester abortions, remember, is a woman not having the funds to get one earlier.

        And let’s remember the devastating consequences of lack of birth control, which are not really comparable to *any* other lack of medical service: There’s no other medical service that, if you neglect it for a week, you suddenly have two decades of very large costs.

        Since contraception is only a small part of the mandated preventative services, it’s only a concern because it’s deemed somehow immoral.

        To everyone that thinks ‘immorality’ is relevant here (Not that it’s immoral, but whatever.), I offer the fact that one out of four women will be raped in their lives, usually while they’re of childbearing age.

        In fact, interesting mathematical fact, a women who uses birth control correctly and has sex every day is less likely to become pregnant than a women who does not use birth control but does not ever choose to have sex. (Because of the aforementioned rape likelihood.)

        But remember, everyone, we live in a universe where all sex is consensual and all birth control is less than a dollar a day and avoiding pregnancy has never really been that important in the lives of women.

        Report

      • I was actually trying to avoid the rape discussion; I felt my persuasion ought to be rooted in the world where women are reliably allowed agency and consent, at least when it comes to sex, if not pregnancy. It is true that a lot of rape results in pregnancy; as I recall, it happens at exactly the same rate as other unprotected sex.

        Even though rape and it’s result are real; playing the rape care sets you up for a different discussion and evokes blaming men; and I was honestly trying to not blame men, but say what was just and a right for women.

        Women deserve things for their own good, not just in response to the injustice they receive solely because they’re women.

        Report

      • I’ve had a chance to get less pissed at you, and so to think a little more critically.

        If an actual “voucher” of sorts is so crucially important, why not require employers to provide vouchers for food, instead of just letting them give employees money?

        We don’t provide vouchers for food. We have a transaction system for paying for food.

        We also have a transaction system for paying for health care; and for most of us, it includes presenting our ID card with our employer and group number and insurer on it. That produces three results: the provider is paid in full by the insurance company, the provider is paid in part by both the patient and the insurer in a co-pay arrangement, or the patient pays in full to meet a deductible, but is charged the rate negotiated by the insurance company.

        That’s how the health care transaction generally works, no?

        What you’re suggesting makes purchasing contraception different then other health care; it’s treated as something other then a health-care purchase. That’s the problem; that difference in thinking has a pretty profound effect on women, particularly younger women who are poorer, and often in minorities. These women are already at an economic disadvantage; and the burden of an unplanned pregnancy is takes a much larger portion of their available resources. Since preventing unplanned pregnancy is a primary concern for women of child-bearing age, normalizing that part of their health care with the rest of the payment system puts that kind of priority on it. It’s not competing with groceries and beer and a fancy new dress.

        Report


      • I was actually trying to avoid the rape discussion; I felt my persuasion ought to be rooted in the world where women are reliably allowed agency and consent, at least when it comes to sex, if not pregnancy.

        Fair enough.

        It is true that a lot of rape results in pregnancy; as I recall, it happens at exactly the same rate as other unprotected sex.

        I know what you are saying, shooting down that completely ludicrous nonsense that various Republicans have started yammering about how women’s bodies can magically ‘shut down’ during rape. (Ignoring the fact that ‘rape’ is essentially how all species procreate, humans included until very recently, so reproduction protection *against* rape would have been evolutionary suicide. Then again, those people probably don’t believe in evolution.)

        But you’ve given too much ground. ;)

        [Unprotected] rape can result in a *much* higher chance of pregnancies than consensual unprotected sex, depending on what you mean by ‘unprotected sex’.

        While calendar-based ‘birth control’ is not the greatest thing in the world, and is not ‘protected sex’, it *does* cut pregnancies by about two thirds if followed normally, and by more than 90% if followed perfectly. Presumably, rapists do not follow it.

        And, on top of that, during consensual sex, there is higher chance of people not being in the correct position during ejaculation, if you understand what I’m saying. Whereas rapists tend to be rather unoriginal.

        Report

      • Zic,

        I’m not saying what you think I’m saying. But you’ve persuaded me anything I say will just be dismissed as male norming, so it’s clear enough that there’s no point in my continuing.

        Report


      • I find it completely astonishing that you think the solution to ‘companies don’t want to pay for insurance that includes birth control’ is ‘women should turn in their birth control receipts to the company and get directly reimbursed’.

        Of course I never said anything of the sort, either about turning in receipts or that as a solution. I’m using comparisons as a thought experiment to analyze a line of thought. But this is more evidence that anything I try to say will just be wasted pixels.

        Report

      • I don’t think that’s being very fair to me, considering that after I got peeved I went back and read through what you were saying, and responded again, specifically to your suggestions of vouchers with an explanation of transaction systems and how that falls out, particularly when your low down on the economic ladder.

        I seriously did that. And I commented about it again to Nob, below.

        Absolutely now way in hell I’d try to dig through my very hostile responses and understand; and no way in hell you could recognize why what you did say might have provoked hostility, since I’ve obviously taken it in a way you didn’t mean.

        You can do better then that.

        Report

      • @DRS and I clearly seem to recall you participating in that discussion; is my recollection wrong? I’m not good at digging up old posts here.

        sorry, Zic, not sure what you’re referring to here.

        Report

  13. You guys consider food to be a basic human right, too, but you have no problem with people buying their own food. Yet if an employer opts not to provide women with contraceptives and they have to purchase them out of pocket, this is seen as some kind of crime against humanity.

    Brandon, I think you miss the fundamental objection from the left, here. In fact, I’m pretty certain that you do, given the way you word this.

    You guys consider food to be a basic human right, too, but you have no problem with people buying their own food.

    Sure. Case A.

    Yet if an employer opts not to provide women with contraceptives and they have to purchase them out of pocket, this is seen as some kind of crime against humanity.

    Case B.

    The employer is not providing women with contraceptives, which is one of the fundamental differences between your case A and case B.

    The employer actually isn’t required to provide anything, goods-wise.

    The employer is required (or rather provided an incentive) to provide access to a service.

    The service is established to be a set of things.

    The employer is objecting to one of the members of that set of things on religious grounds. Effectively, this is attempting to establish their religion’s teachings as a guideline for what is appropriate to include in the set of things that are the service.

    You can see how people might have a problem with that principle, which has nothing whatsoever to do with the particular element in the set.

    A First Century Gospel Church employer could be demanding that they not provide access to medicine at all.

    The principle isn’t “does the government have the power to force people S to provide X to people Y”. I get that libertarianism objects to this, but this is accepted as a given, generally.

    The principle is, “given that the government has the power to force people S to provide X to people Y, to what extent should that power be tempered by the religious beliefs of people S”

    Report

    • The principle is, “given that the government has the power to force people S to provide X to people Y, to what extent should that power be tempered by the religious beliefs of people S”

      Does allowing S’s religious beliefs to temper Y mean violate X’s religious freedoms (including the freedom not to participate in S’s religion)?

      Report

      • Everything, really, is competing freedoms and rights. At least, everything worth haggling over in public policy debates.

        Flipping this on the other side, if we never take into account S’s religious beliefs, we have no conscientious objectors. Some basic imagination play will get you a bunch of other things that you might regard as more important, if that one example isn’t good enough.

        At some point, “freedom of religion” and “freedom from religion” will come into conflict. Adjudicating that is going to be a necessary task, I don’t think negotiating every one of those cases from foundational principles of “which one is more important” is very fruitful.

        Report

      • I’ll note: Hobby Lobby has no fucking ground to stand on, here.

        A corporation is not the owners. Hobby Lobby, Inc., has no religious beliefs, only its owners do. Hobby Lobby, Inc., has legal obligations to its employees, the owners don’t.

        But that doesn’t mean that I can’t see “religious objections to being provided X to people Y” as being a general principle that has no merit at all.

        Report

      • Classic dyslexic backward there, I apologize.

        I’ll use words, instead:

        Does allowing Employer S’s religious beliefs define the set of X services (health insurance preventive coverage) violate employee Y’s religious freedom?

        Report

      • Does allowing Employer S’s religious beliefs define the set of X services (health insurance preventive coverage) violate employee Y’s religious freedom?

        Provisionally, sure. Just like forcing Employer S to provide that violates religious freedom.

        So does paying taxes for a standing army, or a welfare state.

        The question is, how bad of an infringement on the freedom is it, in the particular case?

        Procedurally, you can make an argument both ways. Personally, I think in the specific instance of PPACA, there is a morally acceptable alternative for the religiously objecting. While they are impacted, I think it’s to a lesser degree than the Y folk.

        In this particular case.

        But that doesn’t mean that I’m willing to throw out the “religious beliefs objection” as a class of argument, altogether.

        Report

    • I keep really hoping that a large company decides that, since viagra can be used for adultery (including any sex out of wedlock), it is against their religion to provide it through insurance coverage for erectile dysfunction.

      Report

      • The National Women’s Law Center studied gender discrimination in health insurance. Link to the pdf report:
        http://www.nwlc.org/sites/default/files/pdfs/nwlc_2012_turningtofairness_report.pdf

        They found that:

        The National Women’s Law Center’s most recent research shows that:
        • Gender rating, the practice of charging women different premiums than men, results in
        significantly higher rates charged to women throughout the country. In states that have
        not banned the practice, the vast majority, 92%, of best-selling plans gender rate, for
        example, charging 40-year-old women more than 40-year-old men for coverage. Only
        3% of these plans cover maternity services.
        • Based on an average of currently advertised premiums and the most recent data on
        the number of women in the individual health insurance market, the practice of gender
        rating costs women approximately $1 billion a year.
        • There is such wide variation in differences women are charged both within and across
        states—even with maternity care excluded—that it is difficult to see how actuarial
        justifications could explain the difference. For example, one plan examined in Arkansas
        charges 25-year-old women 81% more than men for coverage while a similar plan in the
        same state only charges women 10% more for coverage than men.
        • There is also wide variation in differences women are charged across insurance companies. For example, one insurance company charges 40-year-old women an average of 20% more than men for the same coverage while another company charges 40-year-old women an average of 50% more than men for the same coverage.
        • Even with maternity coverage excluded, nearly a third of plans examined charge 25- and 40-year-old women at least 30% more than men for the same coverage and in some cases, the difference is far greater. For example, one company charged 25-year-old women 85% more than men for the same coverage, again excluding maternity coverage altogether. These differences result in women paying significantly more for health insurance every year than their male counterparts. For example, one plan in South Dakota charges a 40-year-old woman $1252.80 more a year than a 40-year-old man for the same coverage.
        • In most states, it is common for a female non-smoker to be charged more than a male smoker simply because she is a woman. For example, 56% of best-selling plans charge a 40-year-old woman who does not smoke more than a 40-year-old man who does smoke.
        • Gender rating also occurs in the group market, where businesses with predominately female workforces are routinely charged more for group coverage.
        • Maternity coverage is largely unavailable in the individual market. In states where it is not mandated, only 6% of the health plans available to a 30-year-old woman provide maternity coverage. Even when states that mandate maternity coverage are included in the calculation, the number only reaches 12%.

        ACA ends this gender discrimination. So beyond religious belief, there’s some sound economic policy behind the requirement to focus on preventative care, and to hone in on the gender-gaps in care.

        Report

      • Note that there’s basically no difference in the 55 age bracket. Apparently insurance companies hate women, but only premenopausal women. Or, you know, it could be that women actually consume more medical care, even without maternity coverage. Young men don’t really have an equivalent of regular gynecological exams, for example, and I believe that men in general don’t go to the doctor as often, though I could be wrong about that.

        Instead of actually investigating this possibility, they just dismiss it out of hand with a non sequitur: There’s wide variation, ergo it must not be actuarially justified. Of course, there are possible explanations for the variation other than arbitrary discrimination, but they’re ignored because they don’t support the agenda. Premiums may reflect a particular company’s historical costs, or a company may choose to reduce the gap to a lower level than is actuarially justified for PR reasons.

        The male smoker/female nonsmoker thing is a non sequitur—since serious smoking-related health problems don’t typically show up until later in life, there isn’t much of a gap in premiums for smokers and nonsmokers at 40.

        Seriously, though, the fact that the gap pretty much disappears at 55 makes the arbitrary discrimination hypothesis look pretty weak.

        Report

      • Since the plans that charged women more then men also didn’t offer maternity coverage, I dunno; they’re charged more because they consume services that the insurance doesn’t pay for?

        Report

      • Brandon,
        Do you agree that a major depressive episode 20 years ago ought to count as a “preexisting condition”?
        Do you agree that a c-section ought to count as a preexisting condition — for a post menopausal woman?

        Yes, there are plenty of ways to say “women get more care” — there are plenty of ways to discriminate against people who attempt to get treatment, too.
        After all, killing yourself doesn’t cost the insurance company anything, unless you fail.

        Report

      • zic,
        no, silly, they’re being charged more because they aren’t killing themselves as cheaply as men. [hence my commentary on treating Major Depressive Episodes as a pre-existing condition. Insurance companies are actively discriminating against people likely to seek treatment for Entirely Unrelated Things.]

        Report

    • “The employer actually isn’t required to provide anything, goods-wise.”

      This seems to be at odds with people’s attitude that corporations have a duty to know how their money gets spent afterwards, and they have an obligation to ensure it’s spent in a moral manner. Apple buys its iPads from Foxconn, and if Foxconn is forcing its workers to go twelve hours without a break for a dollar a day, wouldn’t we say that Apple is transitively exploiting those workers?

      “The employer is required (or rather provided an incentive) to provide access to a service.”

      The employer is not requiring that employees never purchase birth-control medications. Those employees are certainly welcome to do so–with their own money.

      Report

      • This seems to be at odds with people’s attitude that corporations have a duty to know how their money gets spent afterwards, and they have an obligation to ensure it’s spent in a moral manner.

        Are you trying to point out that there are people on the left that aren’t consistent? Stipulated.

        (I’ll note that there’s a difference between your example and this one, though)

        The employer is not requiring that employees never purchase birth-control medications. Those employees are certainly welcome to do so–with their own money.

        And they’re also welcome to do so, with their own insurance.

        Money is fungible, sure.

        The argument on the left is that insurance should be fungible to pay for the things that the *consumer* of the insurance rightly regards as medical care. Not the employer.

        If you want to take issue with that standpoint, then fine, take issue with it.

        The counterclaims prevented so far are

        “insurance should not be provided on principle” which I contend misses the point

        or

        “insurance can be provided, but including this one thing in the fungibility of what can be accessed by the insurance is morally objectionable (when giving them fungible money isn’t, for some reason) and thus we’re making a religious freedom claim to not having to provide it when we’ve never made a religious freedom claim to restrict how people can spend their wages”.

        Unpack that argument and make it work for me, and I’ll get behind the counterclaim. On the face of it, this is really a nonsensical rejoinder to me, and I don’t find it compelling, but hey, maybe that’s me missing something.

        Report

      • “Are you trying to point out that there are people on the left that aren’t consistent? Stipulated.

        (I’ll note that there’s a difference between your example and this one, though)”

        And that difference is…?

        Saying “corporations cannot hold moral views!” is directly contra the notion of “corporate responsibility”. If you want corporations to be responsible for what happens with their money, well, sometimes that’s going to be Hobby Lobby saying “we won’t pay for a moral transgression”.

        “The argument on the left is that insurance should be fungible…”

        …at which point it’s not insurance anymore. Now it’s compensation. And, therefore, mandating that employers provide compensation in certain forms means that you are, in fact, mandating that employers pay for contraception.

        Giving people “fungible money” (sic) is indeed different, because it introduces an element of moral choice on the employee’s part. “Part of your compensation is that you get so-many dollars in a flex spending account” is different from “part of your compensation is that we pay your doctor bills”.

        Unless you’re trying to make the argument that corporations should be held responsible for their employees’ private actions, and therefore corporations should subject their employees to standards-of-behavior regulations and intrusive surveillance. (I don’t think you’re actually trying to make that argument, but you need to be careful that you aren’t making it by accident.)

        Report

      • “The argument on the left is that insurance should be fungible…”

        …at which point it’s not insurance anymore. Now it’s compensation.

        You ellipses’d out a very important part of that sentence. Indeed, you basically neutered out the important part so that you could move the discussion over thataway.

        You want to argue with me, Jim, argue with the argument I’m making, not the argument you want to have with some imaginary leftist.

        Report

      • Saying “corporations cannot hold moral views!” is directly contra the notion of “corporate responsibility”.

        On this, which is an aside and not really germane, I’d just mention that corporations can have ethical and legal responsibilities while not having moral character.

        The fact that some people on the left equate those two things when it’s convenient for them to do so doesn’t mean that it’s correct, or that I equate those two things.

        Report

      • “You ellipses’d out a very important part of that sentence.”

        I assumed that a reader would, if they wished, go back and read the original post, which is just a Page Up away.

        But hey, if you’re that angry that I didn’t eat the whole word salad, fine. Put the whole sentence there; does it actually change my contention that calling insurance “fungible” means that it’s not insurance anymore, but is actually compensation?

        Please stop doing this thing where we say “money spent on healthcare comes from insurance! If I pay the doctor, that’s health insurance!” That is not actually what the word “insurance” means.

        “corporations can have ethical and legal responsibilities while not having moral character.”

        I don’t see how “ethical reponsibilities” is at all different from “moral character”.

        Report

    • The principle is, “given that the government has the power to force people S to provide X to people Y, to what extent should that power be tempered by the religious beliefs of people S”

      I thought that was pretty clearly spelled out in the Religious Freedom Restoration Act.

      Report

      • It absolutely comes into play. Under the Religious Freedom Restoration Act, to the extent a sincere religious objection is raised to an otherwise neutral and generally applicable, the government must 1) demonstrate a compelling government interest and 2) show that the burden is the least restrictive alternative available. RFRA basically restored the strict scrutiny test that got severely undermined in the Employment Division v Smith decision.

        In fact, I’d argue that according to the law, this is the only way to evaluate this case. Yes, contraception may be sound economic policy due to the costs associated with unwanted pregnancies but does that alone satisfy the compelling interest requirement? No.

        I think made a good point when he wrote:

        I do know that I thought it was invulnerable, but the more that I am reading, the more vulnerability I am seeing. If not in the concept of the law, than in its execution.

        The government’s case is highly vulnerable. It met neither requirement at oral arguments. I have a hard time believing a compelling interest argument when 1) there are a multitude of exemptions affecting tens of millions of people and 2) the requirement was a function of the administrative process as opposed to a direct statutory requirement. Furthermore, the government could not address the least restrictive argument. The best it did was try to argue that directly subsidizing these contraceptives would represent an “open ended cost” to the government. It’s our fiscally responsible government at work. The Solicitor General was completely unprepared.

        For the people that don’t want to see Hobby Lobby win, my advice is to hope that the Court finds that neither Hobby Lobby nor the Greens have standing to bring a RFRA claim. The government did as piss poor a job here as it did when the court heard oral arguments for NFIB v Sebellius. When Verilli attempted to justify the mandate on Commerce Clause grounds, he was crushed. It’s amazing how badly this government needs to get its act together when it comes to defending its own legislation from legal challenges.

        Report

      • For the people that don’t want to see Hobby Lobby win, my advice is to hope that the Court finds that neither Hobby Lobby nor the Greens have standing to bring a RFRA claim.

        Hobby Lobby doesn’t have standing to bring the RFRA claim, and neither do the Greens, if you’re asking me (which nobody is.)

        But then, I have a very nuanced view of corporate personhood.

        Report

      • This reminds me somewhat of the Insurance Mandate question, and not just because it includes the word “mandate” and is a part of PPACA. Namely, it seemed to be taken for granted that of course the courts would allow the Insurance Mandate to stand as a tax. Only unserious people would suggest otherwise. Then the closer we got to it, the more apparent it was that the Insurance Mandate actually was vulnerable.

        Of course, it survived, and there’s a solid chance that the Contraception Mandate will as well. But the IM survived by a single, unlikely vote in spite of how the law was sold to the public.

        For that matter, it reminds me a bit of the Zimmerman verdict in a different way. The closer it came to game time, the less that I initially heard as obviously true was actually all that certain. There is actually a pattern here, and one that might be broadly significant (not just about the side I seem to be talking about, but about the other side as well) or might say more about myself and the circles I run in.

        Report

      • In fact, I’d argue that according to the law, this is the only way to evaluate this case. Yes, contraception may be sound economic policy due to the costs associated with unwanted pregnancies but does that alone satisfy the compelling interest requirement? No.

        In reading the IOH report on the gaps in coverage for women, it’s not so obvious to me that it’s not a compelling interest. I also quoted from a study above that lays out the gender discrimination that exists in health insurance pre-ACA. Again, I’m not convinced that there is a lack of compelling interest.

        Report

      • 1) Presumably you’re talking about over all defenses, not just what happens at oral argument, right? (Obviously Clement runs circles around Verilli at orals.)

        2. Presuming that’s a “yes,” are you saying that there were good arguments for a CC defense of the mandate that the government failed to make in NFIB v. Sebelius?

        Report


      • It absolutely comes into play. Under the Religious Freedom Restoration Act, to the extent a sincere religious objection is raised to an otherwise neutral and generally applicable, the government must 1) demonstrate a compelling government interest and 2) show that the burden is the least restrictive alternative available. RFRA basically restored the strict scrutiny test that got severely undermined in the Employment Division v Smith decision.

        You’re begging the question.

        ‘Not paying for something’ is not an ‘exercise of religion’.

        And you can’t burden someone’s exercise of ‘not paying for something’ by making them pay for it.

        I’m pretty certain the courts have already *specifically* addressed that concept, with people trying to avoid paying taxes to keep from supporting things against their religion.

        Report

      • In reading the IOH report on the gaps in coverage for women, it’s not so obvious to me that it’s not a compelling interest.

        I’m not saying that it can’t be a compelling interest as a conceptual matter. I think it can be. However, whether the government sees this as a compelling interest is best judged by its actions.

        We’re still not even to the least restrictive means test.

        Report


      • Hobby Lobby doesn’t have standing to bring the RFRA claim, and neither do the Greens, if you’re asking me (which nobody is.)

        But then, I have a very nuanced view of corporate personhood.

        I mostly agree with you. The Greens have no standing. But Hobby Lobby does have standing.

        And, as I’ve explained every time this is talked about, Mr. Hobby Lobby should take the stand and testify as to his specific religious beliefs, so we can determine that they are *his* beliefs, and not the beliefs of his owners or his employers. That’s what we always do in cases like this. We don’t let lawyers and whatnot speak for people, we make them get up and tell us what they sincerely believe.

        Oh, Hobby Lobby is not a corporeal or even sentient entity? He’s a legal fiction? Then how the *hell* is he claiming to have religious beliefs?

        Report

      • At the risk of giving too much away, and as correct as I tend to think you are on a general basis, the government has to show that its interest in the regulation isn’t just compelling in the first place, but that it’s also compelling as applied to this specific employer. They’ve literally done close to nothing to make that case.

        Liberals should seriously be appalled at the incompetence of this Administration’s litigation strategy and tactics in critical cases almost since they took office. That incompetence allowed the individual mandate in the ACA to get within an inch of its life before the Chief Justice pulled it out of the fire, and there’s a very good chance it’s going to allow their contraception mandate to get gutted.

        If Lawrence Lessig is to be believed, it also signed the death knell for aggregate contribution limits (though I think that should have and would have died anyhow).

        If the contraception mandate gets gutted, the urge will be to blame it on conservative judges being blatantly partisan; in reality, it will be because the Administration yet again refused to take the arguments against it seriously and yet again believed its own talking points about conservative jurisprudence.

        The same cannot be said for their opponents, who have quite regularly and directly addressed liberal arguments against their legal theories, going so far as to rely on Justice Brennan more than any other justice in the instant case. The government ought to have run around citing Justices Scalia and O’Connor at ever possible opportunity – there’s actually quite a bit of material they could have used, especially seeing as Scalia is the judge whose notion of religious liberty was once so narrow that it caused Congress to enact RFRA in the first place.

        Report

      • I’m not saying that it can’t be a compelling interest as a conceptual matter. I think it can be. However, whether the government sees this as a compelling interest is best judged by its actions.

        Above, I quoted the study on gender discrimination in health insurance; women were paying $1B a year more for health insurance that did not cover their basic health care needs — contraception, maternity care, pap smears, etc.

        Another way of thinking of that is that they were being charged more for health insurance designed for men. Did that same coverage include prostate exams, erectile-dysfunction treatments and hernia repair?

        I don’t know the answer to that question. But I do know this: when my doctors recommended I not have more children due to injuries to my spine, we looked at our options. My husband could have a vasectomy, which was covered and is outpatient surgery, or I could have a tubal ligation, which wasn’t covered and required inpatient surgery. (Granting that this was a very long time ago.)

        That gender discrimination is the compelling interest. But I do agree that we don’t know how the SC will read it.

        Report

      • …And when I say the government has done close to nothing to make its case against Hobby Lobby, I don’t mean that their case is unpersuasive – I mean that they literally haven’t even tried to make their case. They just assert that they have a general interest in the regulation in the first place and think that’s enough. And it might be in some cases. But not when they’ve already granted bunches of exemptions. If they’ve granted bunches of exemptions, they’ve got to show why Hobby Lobby doesn’t deserve one, and they don’t even make an attempt on that score.

        Report


      • Can the amicus briefs bring up approaches that the government neglects or underemphasizes? Including citations of Scalia and O’Connor opinions?

        Also, this puts a lot on litigation strategy. In the runup to the ACA ruling, iirc, their was a circuit split, are you saying that the right litigation strategy would’ve meant fewer or no rulings against the government in lower courts?

        At base, you’re counting to five justices and you have a sense beforehand of who the swing justice is and whose votes will reliably favor certain constitutional interpretations. Wouldn’t the government just be fooling itself it thought with the right litigation strategy they could get, say, Justice Scalia’s vote on some of these issues?

        Or put it this way, say Scalia and Thomas retired in Feb 2009, couldn’t we more easily predict where the court was headed on a number of these currently 5-4 hot button issues?

        Report

      • Namely, it seemed to be taken for granted that of course the courts would allow the Insurance Mandate to stand as a tax. Only unserious people would suggest otherwise. Then the closer we got to it, the more apparent it was that the Insurance Mandate actually was vulnerable.

        I think you meant the Commerce Clause.

        You’re begging the question.

        ‘Not paying for something’ is not an ‘exercise of religion’.

        How am I begging the question? I just described how RFRA works as a matter of law. This is the way the case is being examined. Frankly, I’d argue that whether or not someone believes that a claimant’s belief is truly an exercise of religion is wholly irrelevant so long as the objection is sincere. That’s the way the law is written.

        I’m pretty certain the courts have already *specifically* addressed that concept, with people trying to avoid paying taxes to keep from supporting things against their religion.

        Yes. United States v Lee. However, the taxes in question there were social security taxes. The tax penalties under the ACA are different. Plus, I think the government’s compelling interest case in Lee was reasonable.

        1) Presumably you’re talking about over all defenses, not just what happens at oral argument, right? (Obviously Clement runs circles around Verilli at orals.)

        I’m not sure which specific comment you are addressing.

        2. Presuming that’s a “yes,” are you saying that there were good arguments for a CC defense of the mandate that the government failed to make in NFIB v. Sebelius?

        You’re asking someone that was bitterly opposed to the government’s Commerce Clause arguments. My answer is that there weren’t any. All the government had to do was articulate a convincing limiting principle. It couldn’t. Hell, I don’t even know if Paul Clement could have done it.

        Report

      • I was aware that was your position on the commerce clause. That’s why I found a critique od Verrilli’s competence on the point to be surprising.

        I was talking about this comment:

        The government did as piss poor a job here as it did when the court heard oral arguments for NFIB v Sebellius. When Verilli attempted to justify the mandate on Commerce Clause grounds, he was crushed. It’s amazing how badly this government needs to get its act together when it comes to defending its own legislation from legal challenges.

        I may have read that to some extent in light of Mark’s arguments about their competence, so I took you to be saying he got crushed because of incompetency. (But also the “get it’s act together” line made me think that.) But, of course the implication of a competency critique of Verrilli’s commerce clause argumentation is that he left good arguments on the table. So i as wondering what you thought those were.

        But I guess you were critiquing his lawyering through an assertion that even mounting a commerce clause defense of the mandate at all was bad lawyering? (Because even a much better lawyer couldn’t have offered the argument necessary to defend it?) Fair enough, I guess. But liberal lawyers were never going to just let the commerce clause argument about this drop. Top lawyers in Republican administrations were saying it was an obvious case. You make the argument best you can because it’s an important philosophical point to argue on (and because frankly if the Court is going to make a call on it it deserves to be argued out); you also advance other arguments that may be more likely to prevail. They did exactly that. They won.

        Report

      • Dave, using the RFRA as a cudgel is pretty inane, simply because the argument isn’t that they should be forced to provide that coverage, it’s that they’re forced to provide a certain minimal level of product as compensation if the entity wants to be in compliance with a standard set by the government. That is to say there is a compelling government interest to define a service provided for the purposes of taxation (which there is, we need a standard on this or else there’s no way to define it adequately in a way to meet the needs of the law) and that the alternative isn’t all that intrusive, there really is the simple out of allowing employers to simply not provide insurance at all and pay an accompanying tax penalty in exchange.

        Again, the alternative isn’t that terrible, even from not paying for employee coverage. Yes, the law probably should have simply given the option for employers to move their employees to the exchange and provide tax breaks to let them simply buy their own coverage (and keep the change) like Ron Wyden proposed to let them do, but that doesn’t make this such an onerous restriction to merit an RFRA exemption.

        Report

    • Patrick:
      The principle isn’t “does the government have the power to force people S to provide X to people Y”. I get that libertarianism objects to this, but this is accepted as a given, generally.

      The principle is, “given that the government has the power to force people S to provide X to people Y, to what extent should that power be tempered by the religious beliefs of people S”

      I’m talking about the first one. To say that the second one is The Issue is to miss the point entirely. I call foul on the whole edifice. It’s bullshit all the way down.

      Report

      • Does government force employers to provide health insurance?

        Because that’s what you’re saying.

        When I googled it, I found this:

        The Affordable Care Act requires certain employers with at least 50 full-time employees (or equivalents) to offer health insurance coverage to its full-time employees (and their dependents) that meets certain minimum standards set by the Affordable Care Act or to make a tax payment called the ESRP.

        That’s an either/or option.

        I tried to find what the penalty was, and came up with this:

        The assessable payment under section 4980H(a) is equal to the number of all full-time employees (excluding 30 full-time employees) multiplied by one-twelfth of $2,000 for each calendar month, while the assessable payment under section 4980H(b) is based on the number of full-time employees who are certified to the employer as having received an applicable premium tax credit or cost-sharing reduction with respect to that employee’s purchase of health insurance for the employee on an Affordable Insurance Exchange (Exchange) [1] multiplied by one-twelfth of $3,000 for each calendar month. In no case, however, may the liability under section 4980H(b) exceed the maximum potential liability under section 4980H(a). Generally, liability under section 4980H(b) may arise because, with respect to a full-time employee who has been certified to the employer as having received an applicable premium tax credit or cost-sharing reduction, [2] the coverage [3] offered by the employer is not affordable within the meaning of section 36B(c)(2)(C)(i) or does not provide minimum value (MV) within the meaning of section 36B(c)(2)(C)(ii). An employee’s receipt of a premium tax credit under section 36B (premium tax credit) with respect to coverage for a dependent only will not result in liability for the employer under section 4980H.

        So let’s take the 1st scheme, and a company with 51 employees, so that we’re 100% sure they are required to participate in the either/or scenario. We get (51 – 20) * (2000/12) for a month’s penalty of $350. Which is a whole lot cheaper then the insurance itself would cost for 51 employees for that month.

        Report

      • I’m talking about the first one. To say that the second one is The Issue is to miss the point entirely.

        If your point is that our current government is not libertarian, okay, uh, yeah.

        You’re right.

        But if you’re arguing with liberals and/or conservatives about what the government is doing, that’s kind of a trivial argument to make. Like, they get it already. They don’t agree with you (and they have the force of law and precedent on their side.)

        Report

      • From that link of Will’s:

        Even apart from religious convictions, the right of an employer to provide health insurance coverage for its employees is a valuable right under the law. If employers were better off dropping insurance coverage and paying the “tax,” we would expect many large employers to do so. That has not happened—which confirms the common-sense conclusion that dropping insurance coverage is bad for employees and bad for business.

        Uh, that’s not the conclusion that I reach from that data point, and the common-sense conclusion that he mentions there is just bananas, which leads me to believe that he’s drawing a conclusion from his erroneous common sense.

        Report

      • I don’t follow. It does seem logical to me that if it were actually financially in the best interest of employers to drop insurance coverage, more employers would be doing so voluntarily. So presumably that demonstrates some sort of burden on someone who drops coverage, the question being whether it qualifies as “substantial.”

        Report

      • What do you want me to say? “If we assume that you’re right, you’re right?”

        Well, no.

        But you’re bringing in an objection that’s not an objection if you don’t disregard the assumption.

        You were comparing buying food with contraceptive insurance and pointing out what you see as an absurdity. But the absurdity in the logic doesn’t exist if you operate from different first principles.

        So my point, such as it was, was to clarify this. Not to argue that the government should or should not be providing insurance, or should or should not be more libertarian.

        Report

      • I expect one of these things to be true:

        (1) it’s financially beneficial to continue to provide insurance under the structure of Obamacare

        In this case, the incentives built into the law for employers to continue to provide insurance (tax credits and whatnot) outweigh the increased cost of the provisioning.

        Well, uh, that doesn’t make providing “it” a substantial burden. Because you have to compare “providing insurance under the law” with “not providing insurance under the law”. Not “providing insurance under the old law” with “not providing insurance under the new law”.

        (2) We’re discussing a collection of individual cases rather than the actual NPV of the insurance cost.

        See, one of the things that Obamacare does is offload some of the more pernicious effects of future costs from the employer, effectively.

        So you can provide insurance for your employees until the point where it becomes untenable for you to do so, at which point you can drop providing health care for your employees, pay the vigorish to the government which is now lower than your new cost, and call it a day.

        Because the big issue with insurance isn’t *how much it costs today* or *how much it costs today in comparison to last year* but instead *what is the total expected cost of insurance, lifetime, and how much of that do I have to pay now*.

        Let’s take a small pool insurance customer, like your average small-to-medium business. Maybe 50-150 employees.

        Under the structure of the law, right now, it might be cheaper for you to provide employer-provided insurance, and it might be more expensive.

        For any given average employer.

        But if you’re providing insurance to a pool of 50 people and one of them suddenly gives birth to a child with SMA, or Incredibly Rare Childhood Syndrome, suddenly your costs might be enormously larger than they were before. So you can opt-out of providing group coverage, and your employees can get affordable health care via the exchanges, and you pay the tax, and everybody wins (except the taxpayers who pick up the difference).

        Currently, then, that huge potential negative cost to “employer providing insurance” won’t ever be realized by the employer, right now today. So their insurance will still be relatively speaking a good bargain.

        If someone offers to offset a huge block of the risk you carry to provide a service, you choosing to continue to offer that service is not a very good indicator of whether or not this is a good economic tradeoff in principle.

        Report

      • I must say it’s intriguing to see someone arguing that corporations should not provide health-care coverage for the employees…

        I’ve always thought that employer-provided insurance was bananas.

        …and arguing it from the *liberal* side.

        Must I say it?

        Report

      • , I’d prefer that employment and health care be separated completely.

        But that’s not what I’m arguing, not matter how much you get pleasure in putting words in other people’s mouth. The argument is that if one’s conscience doesn’t allow you to offer the basics of health care that people need, then you have the option to instead pay the tax penalty and opt out of offering insurance.

        Report

      • “if one’s conscience doesn’t allow you to offer the basics of health care that people need…”

        You’re begging the question of whether birth control is one of the basics of health care that people need.

        Report

      • At risk of violating commenting policy, you are being an asshole.

        The contraception mandate was written into the rules of required preventive care based on statistical measurement of women’s health care needs and where those needs were not being met by the existing system. I’ve linked to it on this thread. The rules were written to make it as easy as possible for women to access preventive contraceptive care possible. I would be happy to discuss the details of how those rules are structured. Nobody debates the ‘provided without cost to the patient,’ and I’d live with small copays, for instance. As long as they were reasonable and potentially included exceptions were made when it created economic hardship.

        So no, I’m not begging the question of wether or not contraception is a basic need of health care; it’s an established fact with hundreds upon hundreds of economic, health, and well being data points supporting it.

        Report

      • &

        Have you guys read the Hobby Lobby oral argument transcript? It’s fascinating reading precisely on the topic of their interest in providing health insurance. They claim both a business *and* a religious interest in paying part of compensation in the form of health insurance. I find that fascinating from the perspective of delimiting the scope of religious exemptions to general regulations of business. (Because it’s one thing if businesses can claim that some regulation happens to interferes with their free exercise rights by conflicting with a general admonition about how to live life. As a matter of scope, it’s something quite different if the religious admonition is *specifically directed at questions about how to conduct commercial business*. That might just be my own particular view, but in any case, they make exactly that kind of claim.)

        It also plays into Will’s accurate point (I don’t remember where exactly) that the case turns in large part on whether the option to pay a tax rather than provide health insurance is understood to be punitive. (I wonder whether it also matters whether the “penalty” would have to be specifically directed at a particular religious practice; here it isn’t: any employer (over 50 employees; under there’s no requirement) can elect not to provide insurance and instead pay the tax for any reason.)

        Report


      • Nobody debates the ‘provided without cost to the patient,’ and I’d live with small copays, for instance. As long as they were reasonable and potentially included exceptions were made when it created economic hardship.

        Can I argue against requiring copays? ;)

        Birth control is exactly the opposite of where we want copays. Copays are intended to slightly discourage medical services, so they are not abused.

        Prescribed birth control cannot be ‘abused’, and it is not something we want to discourage by any amount. In fact, we want to encourage it. The more birth control out there the better.

        Unplanned pregnancies are a *hideous* drain on the resources of this country, and ruin the lives of women and even men. Just from sheer *cost* reasons, stopping unplanned pregnancies is probably a better investment than *roads*.

        …unless we want to go with the idea that sex by women is immortal and we want a ‘sin tax’ on it. Which is really the only reason we’d want to have women pay for birth control.

        Report

      • I agree.

        My point was that arguing about how to make contraceptive care available was a valid discussion, if contraceptive care is a necessary part of women’s health care is not, with reams of data to back up that assertion.

        Report

      • Haven’t read it, but McConnell talked about that specific point. My initial response is that I don’t really buy into it. I mean, I guess I could be convinced, maybe, but it’s not up to the government to give you the lattitude to be generous in secular ways, generally speaking. This thinking may be flawed as I haven’t put a whole lot of thought into it.

        I will say, that one of the lingering issues I do have with the execution of the contraceptive mandate is that by some accounts it does seem to discourage non-compliant plans above and beyond what is necessary. Above and beyond what I would consider more reasonable measures such as (a) it will be taxed compensation and (b) you’ll have to pay the penalty. But if this is true, it does give some traction to HL’s stated desire to give some insurance but not compliant insurance. The religious aspect on it is questionable, though, except to the extent that you can make the case that it’s disproportionately religious organizations that want to do things in such a way that maximizes the penalty.

        Report

    • Patrick,
      I don’t think you can handle the comparidon well. We don’t require an emoployer to provide employees access to food. Employees choose to buy food out of their wages. This, although food is more critical than contraceptive services. But we don’t allow employers to simply increase wages sufficiently to cover contraceptive services.

      Report

      • It could be that the bill’s (and rule-writers’) assessment is that cash wages will not go down enough to offset the benefit to women of this coverage. Moreover, how do you prevail upon employers to raise wages in response to this particular need? In essence, it could just be seen as a way to offset the disproportionate way that the cost of effective birth control falls on women – and to subsidize effective family planning over other ways to spend wages. The wirters of the bill want to ease the disproportionate way that the costs of effective family planning fall on women. That’s what distinguishes contraceptives from food: the cost of food falls roughly equally between the sexes. If you start listing other items whose costs fall disproportionately on women as candidates for subsidy, you’ll probably find a receptive audience among supporters of this part of ACA, not protests against a slippery slope argument.

        Report

      • We do, however, force employers to meet a certain minimum level of compensation for employees to be able to meet the criteria of actually employing them.

        And in terms of providing health insurance coverage, the government provides what is essentially a tax credit (by not taxing employer provided coverage) if an employer chooses to provide health insurance as part of compensation. That the government then turn around and be able to define what type of compensation meets that criteria, honestly does not seem to be all that controversial to me.

        The employers if they wanted to, could simply choose to pay a tax based on not providing health insurance, but because not providing health insurance is (rightly) seen by these employers as being a net negative for them, they’re asking to have the definition of what counts as insurance changed for their benefit.

        This isn’t a liberty or rights issue.

        Report

      • A and B are both defined as crucial. A we insist has to be provided by the employer as a non-cash benefit. B we don’t insist the employer has to provide at all; it’s up to people to figure out how much of their earnings they’ll spend on it, even though its indisputably more crucial than A.

        I think it’s a pretty apt comparison.

        Zic pointed out that sometimes she had to make a choice between spending $30 on food or on contraceptives. Why is contraceptives the item whose provision becomes a moral imperative? Why not require employers to provide a coupon to Food Mart? Why not require a specified contribution to an employee’s landlord/mortgage holder?

        There are surely pragmatic reasons for requiring one over the other, but we’re being given moral claims, which is entirely unpersuasive in supporting required provision of contraceptives over required provision of these other things.

        That’s why the comparison is apt.

        Report

      • The reality is that the unique circumstances of the development of health insurance and payments PLUS the employer provided model of health insurance in the US has made health insurance a very specific model of compensation as opposed to other types of provisions.

        If you want to argue that we remove that special circumstance and make Health Insurance just another part of fungible compensation? You know what? I’m entirely for that. But to pretend that health insurance isn’t special because of how the market for it developed rather uniquely in the US is both disingenuous and playing fast and loose with the facts.

        Simply put: Contraception is special because it’s part of compensation that developed differently from housing or food. If the US had a tax code where say mortgages were paid by an employer and that mortgage payment was tax free, and thus incentivized to be provided over simply increasing an employee’s pay, you’d see a similar argument for favoring housing.

        Report

      • +1

        I tried to say this upthread, in response to voucher question.

        The problem with making this point is that, in fact, contraception hasn’t been mandated through insurance plans; and across vast parts of the country, was not included. Women had to pay out of pocket, and that went up to and included maternity care.

        So you have to establish two things, first that contraception is central to women’s health care, and should be paid for via health insurance as a basic preventive service, and second, that the best, least burdensome way to pay for contraception is using the same transaction system that’s used to pay for all other health care.

        Failure to do the second, to me, seems akin to staking out the difference between civil unions and marriage; it’s the same, only different. And different carries some stigma with all sorts of repercussions.

        Report

      • @nob–You’re making a pragmatic argument. I’m not critiquing pragmatic arguments.

        — It seems to me you’re bouncing back and forth between pragmatic arguments and moral arguments. I’m not critiquing pragmatic arguments. I’m saying if you want to make a moral argument you can’t logically restrict it to contraceptives.

        I think this would be easy if this wasn’t an issue that was so bound up in ideology and had so much emotional power. But it is and it does.

        Report

      • I’m making every type of argument that seems valid. Some are moral. Some are pragmatic. Because morals are applied to pragmatics things, they are not abstracts.

        I don’t find anywhere near the amount of separation between the moral and the pragmatic that you seem to see in the world. Perhaps I don’t truly comprehend the difference, and that may speak a lot to why I don’t believe in a god; to me, the moral and the pragmatic are intertwined, and there’s never one right way, there are only possibilities and probabilities, and the moral thing is to wade through them and try to pick the best course, and to re-evaluate when you see that you’ve gotten it wrong in some way.

        Report

      • I may be missing what Zic’s saying, but I feel like her basic point is that you can’t on one hand define health care as something, and then on the other exclude things that are vital to a woman’s health and still continue to call it health care.

        Report

      • A and B are both defined as crucial. A we insist has to be provided by the employer as a non-cash benefit. B we don’t insist the employer has to provide at all; it’s up to people to figure out how much of their earnings they’ll spend on it, even though its indisputably more crucial than A.

        I think it’s a pretty apt comparison.

        Well, you would, you share the same normative assumptions as Brandon. You’re looking at it as “why does the government force X to provide A to Z and not force X to provide B to Z?”

        There’s no normative assessment there, for the liberal (or for a conservative, for that matter, just different Xs, Zs, and As & Bs).

        The government forcing X to provide A to Z is a normal order of business.

        Why we force X to provide A to Z, and we force Q to provide B to Z, and not the other way around, or ignore C or whatever, those are practical issues, not normative ones.

        Report

      • Patrick,

        I repeat, since you seem to be ignoring what I actually write, that I’m not critiquing pragmatic arguments here. But the arguments Brandon and I were critiquing were arguments with a moral basis.

        If you don’t grasp that, then you’re missing the point of the comparison and your critique of it is not relevant to what either he or I were saying.

        Report

      • James H,

        I don’t get your moral position here.

        Are you saying that if Obamacare required companies to provide insurance or not get tax breaks (which is not really a “mandate,” but whatever) that is wrong because it would imply that employers have to provide other things, like enough money for food and shelter?

        But we do require that companies pay a minimum wage so that people can afford food and taxes that are used to subsidize education, college, etc.

        I think Patrick’s point is that if you believe there is nothing morally wrong with minimum wages, redistributive taxes, etc., there is going to be nothing wrong with requiring companies provide comprehensive health insurance (that includes contraception and things that Christian Scientiests don’t approve of, and psychiatric coverage that Scientologists don’t approve of, etc.)

        If there is a moral justification for the claim that companies shouldn’t have to pay for comprehensive health coverage, there is a moral justification that theyy shouldn’t have to pay taxes that subsidize Medicare, too, for example.

        You seem to want to make the opposite point. (One man’s modus ponens is another man’s modus tollens.) That is, you seem to want to say if you are justified in requiring comprehensive health coverage, you are justified in requiring employers and the wealthy (through taxes, minimum wage, health insurance requirements, etc.) to provide for employees and the poor.

        But liberals accept that this is justified. All that remains is the pragmatics of how to provide for comprehensive health care (and food, shelter, education, and other basics) for all.

        Report

      • Is anyone clear at this point what the moral argument that James is critiquing is – or what makes it an “argument with a moral basis” and thus subject to his critique – and not a “pragmatic argument” and thus not subject to it? I’m not.

        Is an argument with any pragmatic component not subject, or does it have to have just enough pragmatism? Or is james arguing that the arguments he says aren’t subject to his critique are purely pragmatic and no moral component whatsoever? That can’t be. So it’s either that he holds that the moral argument he’s critiquing has no pragmatic consideration to it at all, or that it doesn’t have enough to be exempt like some others that have more (which flips them in his taxonomy from moral to pragmatic). But I’m not clear how we’re supposed to be identifying which ones those are, and he says we are supposed to be. So it seems most likely that the argument is that the arguments he’s critiquing have no pragmatic consideration at all. (But maybe we’re just supposed to know how he’s doing his assessment of the pragmatism level.)

        But I still don’t remember what the “moral” argument is. I’m pretty sure that if we were reminded we might find out that the people who made it are in fact willing to make all sorts of pragmatic compromises around it. Or at least i suspect it’s quite possible.

        Report

      • Why do you disagree, James? I don’t think there’s many liberals here who would disagree with the notion that employer provided health insurance is not ideal and therefore it would be just as well if they were allowed to simply give employees payment to buy their own coverage. In fact that’s what people are actually saying. Every response to your question has been “Well if they want to forego the tax credit and let people buy stuff on the exchange, that’s fine.”

        The fact that you’re making a semantic argument trying to divide between “moral” and “pragmatic” arguments in this case is ridiculous, because no one is saying that employers MUST provide health insurance, they’re saying if they want to provide it AND reap the benefits of doing so, it must meet certain criteria. To argue that this is only addressing the “pragmatic point” is sophistry. The fact of the matter is, there is a historic reason why employer provided health insurance is the norm in the US and why we’re having this argument instead of with food.

        But we can put it this way:
        Let’s say food were provided as a form of compensation, vouchers to say a grocery store in exchange for work. Employers choose to provide this in lieu of pay because there’s tax benefits to doing so instead of just paying people normal money.

        But because of “religious reasons” an employer declares that they’ll only pay for vouchers that can be used to buy meat. Of course the employer itself doesn’t want to restrict their hiring to vegetarians, but they also don’t want to give up the financial benefit of providing the food voucher. The employees would be fine with being given a sum of money to spend on food instead, but for some reason the employer doesn’t want to do that.

        What’s the moral principle that says that the employer should be able to change the definition of food to suit their own ends and exclude the employee? And why should they be allowed to do that to maintain their own interests instead of do what’s right for the employee and give up on the tax benefit?

        This is what’s effectively being argued here.

        Report

      • I repeat, since you seem to be ignoring what I actually write, that I’m not critiquing pragmatic arguments here. But the arguments Brandon and I were critiquing were arguments with a moral basis.

        I’m no longer sure what we’re talking about. Maybe we’re just talking past each other. I’m not ignoring what you’re writing, I’m just not seeing how it connects to what I’m writing.

        If you don’t grasp that, then you’re missing the point of the comparison and your critique of it is not relevant to what either he or I were saying.

        Hm.

        I think what I’m trying to say, here, is that you’re making a moral assessment of a quandary that exists in the libertarian framework, but in the liberal framework that quandary doesn’t exist; it’s not a moral argument or a normative argument at all, but a practical one.

        Perhaps I’m not expressing myself well.

        Answer ‘s question, maybe that will get us somewhere.

        Report

  14. Hey, here’s a revolutionary concept, guys: my birth control should be covered by employer-provided insurance because – wait for it, wait for it – I want it that way. Mind-blowing, isn’t it? As an employee I should be valued enough to have my wishes taken into account and not have to justify them to a bunch of male dicks.

    Report

    • “As an employee I should be valued enough to have my wishes taken into account and not have to justify them to a bunch of male dicks.”

      Welcome to the Libertarian Party. Here’s your complimentary gun.

      Report

    • my birth control should be covered by employer-provided insurance because – wait for it, wait for it – I want it that way

      So whatever we want, we should be able to force our employers to provide?

      I think there are more apt descriptors than “revolutionary” for that idea.

      Report

      • I want a weekly massage in my office and a sparkle pony.

        Your belief that your employer ought to give you the products or services you want, instead of money with which you can choose what products/services you will purchase is an indicator of how silly this discussion has become.

        Now if you can negotiate these things with your employer, that’s awesome. I’ve got no criticism of that.

        Report

      • Or you can convince 218 representatives, 51 Senators, and 5 Supreme Court Justices that if an employer provides a benefit, that benefit has to include x, y, and z.

        Report

      • You know, James A., you’re the one making this discussion silly. Birth control is a sound healthcare investment and there is no reason it cannot be covered as part of an employee’s healthcare insurance package. And yes, I do have it covered in mine because my employer-organization appreciates that it’s important for female employees. You carry on as if it’s some radical notion but it’s actually quite common.

        Report

      • Slippery slope fallacy James.

        We can’t say that gay marriage is a right without saying polygamy is a right. We can’t say a ban on assault rifles or nukes is justified without saying a ban on knives is right.
        We can’t say employers should be required to provide comprehensive coverage without saying that they should be required to provide hookers, blow, and sparkly ponies.

        Report

      • We can’t say that gay marriage is a right without saying polygamy is a right.

        That one is actually defensible in my mind, but I’m weird.

        We can’t say a ban on assault rifles or nukes is justified without saying a ban on knives is right.

        Point of fact, it’s illegal to carry a blade longer than 6 inches in California. So, not sure that slope is so slippery. Or it’s slipper than you think. Or something.

        We can’t say employers should be required to provide comprehensive coverage without saying that they should be required to provide hookers, blow, and sparkly ponies.

        The whole debate boils down to “who gets to decide what is comprehensive coverage”, really. We’re all dancing around that.

        DRS, for all her “thumb James in the eye” approach has been pretty straightforward about who she thinks should make the call: her. Jesse has been pretty straightforward about who he thinks should make the call: the political majority (I’ll note there’s an interesting misalignment there).

        Me, I think the question isn’t quite so straightforward.

        However, I do know one thing. I know that a legally constructed for profit business operation that isn’t a sole proprietor can’t make a religious claim to anything. That much I know. I’m certain of that one, right down to my bones.

        Report

      • The “assault rifles versus knives” thing is kind of funny because I can’t tell you how many people times I have been in argument suggesting that because I support laws against bazookas that I shouldn’t be wary of laws against assault rifles.

        (In truth, slippery slope-ism has comparatively little to do with my skepticism towards laws against assault rifles. It does factor in to my skepticism towards registries. In part because that is a slope that we have slid already down. Not all slippery slopes are fallacious.)

        Report

      • The proper call about how we structure society is made from behind the veil of ignorance by rational, self-interested agents.

        Therein, agents decide that we want to live in a social democracy with redistribution to protect the worst off that doesn’t spoil the very benefits of capitalism being transferred to the worst off. Once that is decided, we need to work out the wonky details of how best to help the worst off. Given the successes of RomneyCare in MA and the failures of old private care, and the political impossibility of Canadian-style care, the wonks came out in favor of mandated basic coverage as a way of best meeting the demands of justice determined by our social democracy and the principles of justice.

        This “who decides” is a fallacy. The question is what is just? Not who decides?

        Report

      • Sure Will and Patrick, there are questions about whether some of these slopes are a little slippery. But none of them are slippery enough (i.e. sliding us into the awful) to justify not banning bazzokas, not allowing gay marriage, etc.

        Report

      • However, I do know one thing. I know that a legally constructed for profit business operation that isn’t a sole proprietor can’t make a religious claim to anything. That much I know. I’m certain of that one, right down to my bones.

        If that’s the case you’re quite a bit more certain of it than even a couple of the female liberals on the Court (and Breyer). Not that they don’t think that, but they seem pretty wishy-washy about it to me.

        I really do recommend checking out the Hobby Lobby oral argument for everyone interested in the case. The audio’s up & downloadable: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=13-354&TY=2013.

        Report

      • This “who decides” is a fallacy. The question is what is just? Not who decides?

        Well, if you’re asking a conservative, a liberal, a libertarian, and a socialist, you’re going to get four different answers as to what is just.

        So who decides the deciders, Shaz?

        Report


      • Behind the veil, people will also choose a principle that is lexically prior to the difference principle, namely to protect a set of basic liberties. Liberty of conscience is one of the enumerated basic liberties and since it is lexically prior to the difference principle, in no way may liberty of conscience be abridged to improve the prospects of the worst off.

        Report

      • The “who decides” in Shaz’s “what is just?” formulation is, I think, everybody, in a discursive process of evaluation of justice claims in which, ideally, eventually everyone agrees (because: moral rationality) on what the right set of reasons is and what they dictate.

        Ultimately this is a pipe dream, and the question of who decides ultimately remains because there will never be moral consensus. But formally speaking the answer to your question, , (not to speak out of turn for @shazbot3) is: everyone, through a fully inclusive discursive investigation into justice.

        Report

      • Or you can convince 218 representatives, 51 Senators, and 5 Supreme Court Justices that if an employer provides a benefit, that benefit has to include x, y, and z.

        “Now that compensation has increased by this percentage, I am going to have to let 3 of you go. Those of you who stick around can look forward to free birth control.”
        “Sir, I already have a vasectomy.”
        “You’re getting it anyway.”

        Report