Birth Control and the Question of What Do the Constitution and the Supreme Court Actually Do
An NPR article on the Supreme Court hearing a case brought by various states against the Trump Administration begins thusly, “The birth-control wars return to the Supreme Court Wednesday, and it is likely that the five-justice conservative majority will make it more difficult for women to get birth control if they work for religiously affiliated institutions like hospitals, charities and universities.”
A CBS article was only slightly better, “In a case that pits religious freedom against a woman’s access to contraceptives, the Supreme Court on Wednesday heard arguments on whether the Trump administration can make it easier for employers with religious and moral objections to opt out of providing free birth control coverage in their insurance plans.”
First, a small digression on the CBS article. Nothing is free. A health insurance plan of X is going to cost Y and an insurance plan that covers X+birth control is going to cost more than Y. Politicians who promise that they can keep health insurance costs constant or even lower them while requiring they cover more things are making promises that do not conform with the laws of economics.
That aside, both the above quotes came from news desks, not the opinion section, but they read like something that came out of a Democratic Party press release or left-wing special interest lobbying effort.
“The birth control wars” do not show a clash between religious freedom and women’s access to birth control. Whatever one thinks of the legal wisdom of Griswold v. Conneticut, the Court is not going to be overturning that 55-year old precedent any time soon, so women’s access to birth control the idea that the conservatives on the Court will be limiting access to birth control is simply false.
If one has to have it explained to them that banning something is not the same as not making it mandatory then they should not be a Supreme Court reporter or justice for that matter.
Ah, the critics say at this point, you’re probably to dumb to know that birth control is used for reasons other than preventing pregnancy (actually, I did know that. I may not remember much from my high school anatomy and physiology class, but I remember that). It is also not a legal argument.
Another not-so clever retort that Viagra is covered under insurance plans for erectile dysfunction, so it’s only fair that birth control is as well. To which the simple answer is that Viagra should not be mandated either. Nothing should be mandated. Why are politicians dictating health care plans? I thought we were supposed to get the government out of people’s health care decisions. Also, why was the Obama HHS suing nuns over this? Again, it is also not a legal argument.
The worst that will result from this is that some women will have buy their own birth control, which in a free society populated with adults is apparently just too much to ask.
All of this leads to the question “what exactly does the Constitution and Supreme Court do?” According to the states that brought this current suit, it apparently exists to do good things. If something is good, it is constitutional. If it is not, it is unconstitutional and since women having access to birth control is deemed a good thing, then mandating it is apparently constitutional.
The Supreme Court is not innocent in this either. Managing employee-employer health care plans clearly appears to be outside the bounds of Article I Section 8, but the Court decided it was when it refused to strike down Obamacare in the first place. The four liberal justices decided government-dictated minimum health care plans were a good thing and therefore constitutional and Obamacare made them mandatory under some perverse definition of commerce and Chief Justice Roberts helped them with his linguistic gymnastics on what constitutes a tax.
Now, they are simply deciding if the Constitution not only permits Obamacare, but whether it actually mandates it and if the First Amendment’s protections of religious freedom still exist. Under the wisdom of the states suing the administration, from 1789–2010, the government was in violation of the Constitution for not mandating employers provide their employees birth control.
But, this should never have gotten to a religious freedom case, because the first question is not one of religion, but association between employer — who could be religious or secular — and employee, because nowhere in the Constitution does it say “employees shall give their employees birth control.”
The Constitution exists to protect the citizenry from the government and to protect our rights. Just because some politicians and activists deem something desirable does not mean there is a constitutional right to it or that it is mandated. The idea that it does leads to a perception of the Court as another legislature, albeit it a more nerdier one, that exists to implement policy that could not be achieved through elections and the normal legislative process.
The low opinion of the Court in recent years is at least somewhat attributable to this results-orientated view of the Court. It does not help that Court reporters feed into this by framing these cases as a win for Trump or a win for this interest group or that interest group as opposed to dealing with the legal question at hand that will have consequences long after today’s current crop of politicians are gone.
Every time the Court hears a case of dealing with a constitutional controversy, the question for everyone, not just the justices, should be what constitutional provision is in question here?
So, what constitutional provision is at question here? The right to access birth control? No, that was decided in 1965. The question here is the right to birth control. Where is that located? Article Unicorn Section Fairy Clause Mermaid?