Is There a “Right” to Birth Control?

The Supreme Court heard oral arguments on Tuesday from opposing legal counsel on the HHS contraception mandate cases. The media consensus appears to be that the justices were hard on the mandate and appear likely to issue a narrow ruling exempting “closely-held” corporations, which both of the plaintiffs are, while leaving open the question of whether or not publicly-traded corporations have First Amendment rights. The distinction is relevant since closely-held corporations are directly operated by their owners and are fairly limited in the number of shareholders they typically have, while public corporations have hundreds or thousands of shareholders. The smaller the group of ultimate decision-makers, the stronger the case that a corporation can in fact exercise religion.

Of course conservative Catholics and Protestants, along with other members of our society that value natural law morality and individual liberty, are hoping that the court rules in favor of Hobby Lobby and Conestoga Wood Specialties. A victory on First Amendment grounds would certainly allay widespread concerns that religious liberty in the United States is at death’s door. Elane Photography’s case, which may also be heard by the Supreme Court this year, would certainly benefit from a Supreme Court ruling establishing the religious rights of businesses. There would be cause for relaxed breathing, if not jubilation, should a tide of court rulings firmly put the brakes on the “progressive” juggernaut smashing its way through traditional America via the lower courts—especially after the Supreme Court’s ruling on DOMA and California’s Proposition 8 (though in fairness, the ruling was not devastating for social conservatism).

My celebration will be muted and limited, however, because a legal victory will not address the underlying philosophical and cultural divide that brought this case before the court to begin with. Contrary to what some may believe, law is not the foundation upon which society rests; it is rather the adhesive we use to patch up broken pieces of society. The more laws, precedents, mandates, rulings and decisions we require to defend our basic interests and assert our rights, the greater indication we have of a society that is almost literally tearing itself apart.

One can look to many flashpoints in the conflict between conservative America and modern liberal America, but the most severe clash arguably takes place over the meaning and nature of “rights.” While illiberal Catholics believe that the logic of American liberalism makes things like contraception mandates inevitable, those of us more sympathetic to the tradition of classical liberalism know that we are seeing something radically new develop on the cultural left that may borrow the language of liberalism but betrays its essence. In the Lockean-Jeffersonian tradition of the United States, natural rights are inalienable and God-given; they are also corollaries to natural laws, duties and obligations. The Lockean right to private property exists because of the natural laws obligating the preservation of one’s self and one’s household. The rights of which Jefferson wrote were “self-evident” and God-given, requiring no council of judges to determine. Government in both accounts is called into existence for the purpose of defending rights that already exist in nature, and not for the purpose of creating them. Thus there is no natural and inalienable right to contraception (or abortion, or euthanasia, or gay marriage for that matter). The people through their political assemblies may create laws allowing for any of these practices, but it does not follow that they have created anything more than a temporary legal right to such things. A new political assembly could rescind such laws without any injury to a fundamental right recognized in our founding documents and philosophical tradition. This, among others, is a distinction between natural and human laws.

Turning to the present, it seems obvious that most Catholics accept that the United States cannot and will not outlaw contraception. While we would not proclaim or defend a “right” to contraception, we would not expect the federal or even state governments to restrict or abolish its production, sale or use. Such a demand, no matter how morally justifiable on the principles of traditional natural law, would be politically irrational and untenable. As far as the vast majority of faithful Catholics are concerned, legal contraception is a fact of modern life, accepted by the vast majority of Protestants and of course our growing secular component (I’m not opposed to intellectually challenging this status quo, of course).  If Americans want to purchase and use birth control with their own money, so be it.

This was not enough for the American left. Though it is an absolute fact that no woman in the United States is, or would be in the absence of the mandate, legally prohibited from purchasing contraception, the left is ceaseless in its deceptive rhetoric which implies the opposite. They speak of the Supreme Court potentially abolishing “the right to contraception”; Obama himself has repeatedly framed the issue as one of employers wanting to “control” their employees. How can one respond to and engage with lies and/or misconceptions of this magnitude? Justice Scalia’s question to Theodore Olson during the oral arguments against DOMA/Prop.8 applies here: when did women paying for their own birth control become a violation of their Constitutional or natural rights?

What the administration really wants is what the collectivists on the left have always wanted: total parity in income between male and female employees, a goal that cannot be achieved in their view without birth control. It is an implicit acknowledgment that the “wage gap” between men and women is not the result of a mythical patriarchy, but rather due to the biological differences between men and women that often cause the latter to work less and therefore earn significantly less than men. Conversely, the less often women are suddenly pregnant, the more money they can earn. The government has taken this up as its compelling interest in its defense of the mandate (see p. 59 of the 10th Circuit’s ruling in favor of Hobby Lobby, for example)

It doesn’t take a scholar of American political thought to see that this collectivist agenda has nothing in common with the individualism inherent in classical liberalism’s take on natural law. If as illiberals might contend conservative Catholics are forced to use the language of individualism to defend themselves whether they like it or not, the modern left is equally compelled to use it to cloak its radically collectivist aims. Women’s liberation—along with racial identity politics—has never been about individual choice or freedom, which is irrelevant to a collectivist; it is about structuring society in such a way that statistical measures of success and achievement in all areas of life will be approximately equal among various groups. Any gap larger than the statistical margin of error between two groups such as men and women in any relevant area, such as income, is automatic evidence of institutional discrimination and oppression—and heaven and Earth must be moved until that gap is eliminated, even if it means the eradication of the individual’s right to free religious exercise, private property, and moral conscience. Call it what you will, but don’t call it “liberalism.”

Joe Hargrave


Joe Hargrave is an adjunct professor of political science at Rio Salado Community College in Tempe, Arizona.

  • FrankW

    Thanks for the article. I wish I shared your optimism on the outcome of this case, but at this point, I’m not as hopeful. We have already seen what media pressure can do to justices on the Supreme Court, most recently to Chief Justice Roberts, who apparently read many articles proclaiming that his reign as Chief Justice would be a failure if the court over which he presided found the ACA’s individual mandate unconstitutional. That is the only explanation for his completely irrational behavior of rewriting the ACA legislation from the bench.

    The same media pressure (and pressure from the White House and liberals in Congress) will once again be directed at the SCOTUS for this case, and Roberts and Kennedy will once again be the targets.

    My biggest distress during this entire debate has been the presumption on the part of most of those covering this debate that the plaintiffs challenging this mandate are somehow seeking to prevent access to birth control. Such assertions are absurd, and anyone informed on this debate knows this.

    Does the government have the authority to force business owners to pay for and offer insurance coverage for things that violate their deeply held religious beliefs? That is
    the question before the court. Unfortunately, based on what came out of those hearings, there are at least three justices on the SCOTUS who haven’t figured that out yet.

    • And the vote so far, comes down strictly along gender lines.

      • TheAbaum

        There has been no vote yet.

        P.S. You mean sex, not gender.

        • No, I mean gender- physical biological gender. From the questions asked, it was very clear that the women on the Supreme Court were very interested in protecting a clear right to contraception- and the men were very interested in a clear right to conscience.

          Which is why I say that with this case, we may well win the battle, but likely have lost the war. When even a Catholic Latina Grandmother like Sotomayor is no longer interested in life, there is very little hope for the future.

          • TheAbaum

            Sex is biology. Gender is language.

            Do you think Sotomayor got Obama’s attention by being a Catholic grandmother or by issuing opinions that conform to the leftist agenda.

            • That’s an interesting separation I have not previously been aware of. I’ll research it.

              • TheAbaum

                Here’s a hint. The term transgendered is designed to subordinate biological reality to a construct.

                • Oh, you’re considering the sociological feminist and LGBT movement definitions. I’m going on strictly the hard science ones, that’s where I’ve fouled up (as in, the gender of this baby chicken is male and thus needs to be killed to maintain the proper ratio for the egg factory).

                  I do have a tendency to reject those sociological based definitions, as sociology is even less of a science than economics.

                  • TheAbaum

                    No, I’m saying REJECT the movement definitions.

                    Only if you think the immutable and insuperable reality of biology is subordinate to a personal concept of identity, can you refer to the “gender” of a person.

                    In other words, outside authentic hermaphroditism, people have a distinct sex defined by biological fact, not a gender of “identity”.

                    • Rather, I reject the “personal concept of identity” entirely, thus making sex “heterosexual intercourse for the purposes of reproduction” alone, and gender, being the Miriam-Webster definition of the physical gender “Male or Female”.

                      I also am highly suspicious of claims of authentic hermaphroditism; I suspect many of these are birth injuries caused by modern medicine that hospitals have covered up over fear of being sued.

                    • TheAbaum

                      “Rather, I reject the “personal concept of identity” entirely,”

                      Apparently not, because you keep using the word “gender” and buying into the idea. You are of the male sex or female sex and that’s it. Pronouns have a gender, people have a sex.

                      I also am highly suspicious of claims of authentic hermaphroditism;

                      Are you a physician or biologist with experience in these matters?

                      I don’t think the tort bar had any bearing on this:


                      You are suspicious of the wrong things.

                    • The word “gender” existed in the language a LONG time before the modernists started messing with it.

                    • TheAbaum

                      The question isn’t the existence, but the application.

          • Michael Paterson-Seymour

            Gender is a quality of words, not of things. It is a classification of nouns, according to the rules of agreement between nouns and adjectives and nouns and pronouns. In both Greek and Latin, this yields three classes and the ancient grammarians dubbed them masculine, feminine and neuter. There is no reason why there could not have been four or half-a-dozen, in which case they would have used a different terminology. Thus, Persona (person) and Poeta (poet) are both feminine in Latin, regardless of the sex of the referent.

            In French, Sotomayor would be « Mme le juge » (masculine) for juge is a masculine noun.

  • HenryBowers

    The illusion is that conception is something we could ever control, when it’s actually a stochastic process. We control only the initial steps of the process, and so a female is not denied income parity any more than an employee’s child is denied a championship if the employer refuses to fund karate lessons. The corollary to this is that the attempts for conception are not health acts per se, but only accidentally, and so neither are acts of contraception health acts per se.

    • Connie Boyd

      Spoken like someone named Henry. Why are conservatives, especially conservative men, so opposed to a level playing field?

      • HenryBowers

        If the complaint is that we should not act against the coming-to-be of women’s opportunities, and neither should we sit idly while their opportunities are squelched . . . how is that problem solved by acting against the coming-to-be of women themselves, or by sitting idly as the HHS forces cooperation with such acts against persons?

      • Bonchamps

        I’m for making it as level as it can be without trampling on natural and individual rights. If there are still disparities, blame nature, not men.

      • TheAbaum

        Spoken like someone named Connie. (now do you understand how inane your first sentence is?)

        Are you normally this inept at offering relevant and logical commentary?

      • Art Deco

        Why is your playing field ’tilted’ because your employer is not buying rubbers for you?

      • Guest

        What does that mean?

  • I have a new theory. Just like the moves of both the conservatives and liberals in the United States are marked by battles that began in the 1960s, I think the “ahistorical” 1960s was in and of itself directly related to the Cold War. Fear of nuclear weapons erasing history, led both conservatives and liberals (in different ways) to “beat the Russians to the Punch” and assure that there would be no future.

    The liberals did this with the Sexual Revolution- in which contraception isn’t just a right, it’s a sacrament. And when the sacrament fails, there’s always abortion.

    The conservatives have been doing it with fiscal liberalism- abandoning the common good entirely as a function of either the government or the market (after all, under libertarian economics, only an idiot gives alms).

    Our current world is the result of that cultural suicide.

    • Michael Paterson-Seymour

      “ assure that there would be no future”

      During « les événements de mai » in Paris in 1968, there was a slogan that appeared everywhere, « Le futur n’a plus d’avenir » The future has no future. For me, it summed up the mood of the decade.

    • TheAbaum

      “after all, under libertarian economics,only an idiot gives alms).”

      That’s Ayn Rand’s objectivism, not that herd of cats that call themselves “libertarian”.

      One of the clearest indication of the intellectual disharmony that underlies libertarianism, is that while Rand is something of an icon among libertarians; she despised them, calling them “hippies of the right”.

      • It’s also Von Mises and Hayek. All three of them would consider almsgiving, for nothing in return, to be irrational economic behavior because it does not include a valued transaction.

        • TheAbaum


          Then again, much of what you are called to do is “irrational”, if you define irrationality as going against conspicuous self interest.

          • I’d suggest reading the whole chapter instead of using a search engine. pgs 831-849 of Human Action was a good place to start, because those quotes only grudgingly admitted to charity AFTER totally demolishing any reason why any reasonable person would want to do it (only those religious reasons for a civilization that von Mises considered less important than profit).

            • Bonchamps

              I’ve read both. In fact I’m fact-checking your claim against Human Action right now. It is amazing how completely and utterly you have misrepresented the entire point of Chapter 35.

              • How is it hard to understand that denying a right to food, clothing, and shelter is denying the right to life?

                • TheAbaum

                  How hard is to understand that you don’t understand?

                  • An absolute right to life includes the absolute right to the necessities of life, regardless of what it does to the economy.

            • TheAbaum

              First of all the question here isn’t whether these men have “the truth”, but whether they rejected alms-giving as irrational.

              I do not know whether you have a deficit of character or reading comprehension, but if you buttressed the assertion that alms giving was “irrational economic behavior because it does not include a valued transaction” with this citation in some college economics course, you’d have a big red “F” on the upper-right hand corner. If you handed me this as a work product, your backside would have pavement burns on your posterior.

              p 831-832 are devoted to the “futility of war”. Thoroughly irrelevant to charity.

              p. 837 posits this sentence.

              “The Catholic orders and congregations and
              some Protestant institutions have accomplished marvels in collecting such contributions and in using them properly. ”

              In fact, Mises indicates this on 839.

              The problems involved are not of a praxeological character, and economics is not called upon to provide the best possible solution for them. They concern pathology and psychology.

              In other words, he’s not only not making an economic (or any, for that matter) criticiism of charity, he saying an economic criticism isn’t possible.

              Ironically, there’s a short discourse on European liberalism on p841-842 that is critical of it’s robustness.

              There is nothing in the rest those pages that supports your accusation. Absolutely, nothing.

              What really ticks you off is this sentence from p. 848.

              “he who does not take into consideration the scarcity of capital goods available is not an economist, but a fabulist. He doesnot deal with reality but with a fabulous world of plenty.”

              I see no reason to conclude your interpretation of Hayek would be any better. Time is short and to waste it on your scurrilous accusations would be, in my estimation futile.


              • Except, of course, the denial of a right to the basic necessities of life.

                • TheAbaum

                  Theodore, stop babbling. Having had your crazy assertion thoroughly disproved, you should just be quiet.

                  • It wasn’t thoroughly disproved. It failed to take into account an absolute right to life that is more important than any economic concern.

                    • TheAbaum

                      It was thoroughly disproved.

                      Theodore, you remind me of the last kid who decided he would engage me physically. As he walked away telling me how badly I was injured, one of the spectators said of him “I guess he doesn’t realize you can beat up a guy by hammering his fists with your face”.

                      You would try the patience of a Saint.

                      I’m trying to be charitable here, but you need to understand that my curious task here is to demonstrate to you how little you really know about what you imagine you know.

                      I realize you have a problem that prevents you from participating in commercial affairs competently and that it makes you bitter about such things, but it doesn’t excuse your calumny or lies.

                    • “You don’t get to replace the assertion with something else-which by the way doesn’t standfor the same reason.”

                      What something else? This has always been about the right to life, and how we need charity and almsgiving not just from individuals, but also from government and businesses, to maintain it under a free market.

                      Otherwise, the “right to birth control” is needed to free up profits for the free market.

                    • TheAbaum

                      First you said “after all, under libertarian economics,only an idiot gives alms” adding “All three of them would consider almsgiving, for nothing in return, to be irrational economic behavior because it does not include a valued transaction.”

                      To buttress your claims, you provided specific pages. There was nothing in there to support your claim. Two of the pages were part of a section called “The Absurdity of War”.

                      Then you write: “It failed to take into account an absolute right to life that is more important than any economic concern.” (and that is contradicted on page 848)

                      If you are 43, act it. I feel like I’m talking to a 4 year old.

  • Michael Paterson-Seymour

    The word “right” is used in a number of different senses and much confusion results from failing to distinguish them. There are, for example “claim-rights,” such as the right to payment of a debt, which can be enforced against some specific person and presuppose a correlative obligation. Then there are rights in the sense of mere liberties – I have a right to watch my neighbour dig his garden and he has a right to grow a hedge to prevent me. This means no more than that I am committing no wrong by doing so.

    My right to walk down the road is a mere liberty, but any attempt to prevent me will probably give rise to a claim-right, a right to a reparation in damages for assault, for example.

    For the sake of completeness, we also talk of rights, in the sense of powers, such as the right to leave someone a legacy, which creates in him a claim-right against my estate to receive it. Then, there are rights in the sense of immunities – a thief can deprive me of possession of my goods, but not of my right of ownership, which becomes a claim-right against the possessor.

    I have a right to buy bread, if I can find a willing seller; this is a mere liberty. Having purchased it, I have a claim-right against the seller, if he fails to deliver it. The two are, nevertheless, quite distinct meanings of the word.

  • cestusdei

    In the end even if we win it will only postpone the coming persecutions.

  • ForChristAlone

    Answer: No, there is no right to birth control.

    Leftist idiots make this stuff up to fit their political agenda. Still much work to be done to convert the pagans.

  • uncle max

    Q: Is there a ‘right’ to birth control?

    A: No

  • uncle max

    I went to print out this article using the ‘print-friendly’ option and was blocked because it was said that this suite is unsafe. The same thing happened when I went to print an article from CWR.

    Has this happened to anyone else?

  • Tony

    Their championing the “right” to flood a woman’s system and then our water supply with artificial estrogen is only their attempt to set up, once and for all, the new god of the illiberal state — a god whose image might well be an enormous phallus. It is just an old and wicked religion in a new and peculiarly vicious form.
    I am waiting for Catholics to say, “Excuse us, but this so-called right is destructive of the common good. It is a cultural suicide pill. It undermines marriage, and sows chaos and transience in the heart of the family. There can be no individual “right” to destroy the society. The Constitution is not a suicide pact.

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    • JP

      Calm down and lose the caps lock. When you do that, read the 1st Amendment and the clause concerning The Free Exercise of Religion. Nothing mentioned about birth control

    • Art Deco

      I believe that’s Suzanne Sears posting as ‘guest’ and reminding everyone of the truth of a recent description of contemporary feminism: it is all reducible to a woman saying “I want”.

    • Objectivetruth

      Don’t type angry!

      Also, spell check is a wonderful thing!

      Why can single women get the pill for free (and then men can use them as objects of sexual gratification. Basically, a “man toy.”)but my thyroid and cholesterol medications are costing me $112 a month out of Pocket? Thanks, Obama!

    • Objectivetruth

      Wake up.

      If you are a single woman demanding free birth control so that your boyfriend/hook-up/one-night stand can then use you as an object of sex realize you are nothing more than a six pack and Monday Night Football to him. He sees you as nothing more than entertainment. Not someone to be respected or dignified. You are his Harley Davidson, his New York Giant season tickets, his x box. You are a toy to him.

      So wake up and and show a little self respect. You are being used. You are only pornography to him.

      • ForChristAlone

        I wonder if she realizes the truth of what you are telling her. The man who is using her body to park his instrument of pleasure simply sees her as a piece of meat. This is an offense to her God-given dignity as a woman. Special devotion to the BVM is in order for her.

    • ForChristAlone

      Go start your own business, risk your own capital, work long hours to make it a success and you then are entitled to run it as you please. In the meantime, grow up and take the pacifier out of your mouth.

  • tamsin

    I began to read the transcript of the oral arguments in the Hobby Lobby case, and could get no further than Elena Kagan whining “So suppose an employer … refuses to fund or wants not to fund vaccinations for her employees, what ­­– what happens then?”

    My guess is that the sky does not fall, but younger viewers should be advised that the premise that makes this question intelligible is brand new with the Affordable Care Act:
    that it is now the legal responsibility of the employer to provide the employee with health care, and either

    1. the employee is not able to get up off her derriere to find other employment if her employer will not provide healthcare benefits to her liking, or

    2. the employee should not have to get up off her derriere and find other employment if her employer will not provide healthcare benefits to her liking.

    Elena Kagan’s question implies women are damsels in distress in need of rescue by the secular government from the big, bad religious employers, but she makes women seem either incompetent or lazy.

    A worldview of unfree and therefore adversarial labor markets pervades the Obama administration. It reminds me of the behavior of teacher’s unions. Former and current and prospective union employees may be comfortable with this view of work and human dignity, but I’m not.

  • Mattelfesso

    The real question, is: Does an employer have the right to regulate the birth control habits of their employees? The argument that they should not be obliged to pay for something to which they have moral objections is extremely weak.

    First, they should not be dictating the health care decisions of their employees, so they are not purchasing this care at all. They are facilitating the acquisition of insurance. It is very authoritarian, to think that you should be able to leverage this into deciding what form of health care some one else chooses. Second, women spend less money, on average, when they use birth control, because having babies is much more expensive. Not to mention the enormous societal cost of not being able to time your pregnancies. So it is a fallacy to say that the Church is buying these services when, if anything, it is saving them money. Perhaps we should we make it mandatory that women can opt for a more expensive, “no birth-control” health plan?

    Give up the authoritarian perspective for a moment, and consider the possibility that it were mandated that everyone have insurance — and that it was the individual who paid, not their employer — would the employer still have the right to dictate what the consumer purchased? And then what if it was mandated that this come from payroll deductions, to be ensure compliance and to get employees the best rates? That’s essentially the case. Just because it comes out of payroll does not give the employer decision making power over what should be made available. The argument as to whether this is employer money or employee money, a salary deduction, or a salary reduction, is a taxation issue, not a moral issue. The reason that the Church is up in arms, is that it can not dictate its morality to others, even if they are not of the same religion. That itself is not morally defensible.

    • Bob


      An employer IS NOT regulating the birth control habits of their employees. So the employer is dictating when (and when not) the employee is to have sexual intercourse? It appears in your argument that every time an employee has intercourse, they will become pregnant, and therefore the only solution is free contraception on demand. And framing the whole issue as “health care” you’re obviously in the Sebelius camp that pregnancy is a “preventable disease” and the baby is enemy.

      Your statement that the Church is trying to dictate its “morality to others” is fallacious and absurd. The Church does not want its members being material cooperators in the immoral evil of contraception. By providing contraception, the government is forcing Catholics to violate their conscience and cooperate with sin. The wheel man in a bank robbery is as culpable in the crime as the two men who went in to the bank who robbed it and shot it up.

      It looks like you’re making a sloppy attempt at Catholic moral teaching, but you really haven’t a clue what you’re talking about.

    • Augustus

      The real question has nothing to do with an employer controlling an employee’s birth control because an employer has no control over an employees ability to purchase birth control–as every honest, rational observer knows. The real question is this: Does an employee have the right to demand birth control from her employer? The obvious answer is no. To argue otherwise is delusional. Demonstrate some adult responsibility and buy your own damn rubbers.

      • Objectivetruth


    • Art Deco

      The real question, is: Does an employer have the right to regulate the birth control habits of their employees?

      Give up the authoritarian perspective for a moment,

      Give up the adolescent perspective, Mattelfasso. The employee is not being ‘regulated’ by being told to pay for their own purchases with their disposable income and not expecting pre-paid cross-subsidies courtesy the boss.

  • Objectivetruth

    Why is the government mandating it a “right” for free oral contraceptives for “health care” when there is no provisions for free Synthroid for thyroid disease, free statins for high cholesterol, free antibiotics for bacterial infections, free eye glasses for myopia, free tyrosine kinase inhibitors for metastatic cancer, etc….etc…..etc….? Aren’t these true diseases and therefore true healthcare that we should have a “right” to? Why free pills to prevent something (pregnancy) that is not even a disease?

    • dove1


  • dove1

    I would think it would be good for capitalism if the best we can get is that “closely held” corporation’s rights are recognized. Maybe it is not all, but I would seek out, as I do now, companies like Hobby Lobby to get my business. Another good reason to avoid “going public”. I will not permit my company to do that as long as I am CEO.

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