There are excellent reasons to oppose state involvement with religion, but originalist arguments are not among them.
The Obama Administration has pushed the regrettable term abortifacient—a term I cannot spell without assistance and a word I dare not attempt to pronounce—into our public discourse. President Obama faces opposition that he cannot resist; he simply will not be able to win this debate, because he is attacking a fundamental liberty, enshrined as such in our Constitution and recognized as such but also believed as such by the vast majority of people. I have wondered why he would even attempt such an outrageous maneuver in any year, much less in an election year. The current rhetoric defending the birth control mandate centers on access to contraception for all women. But that’s clearly not what’s at stake.
Think about it: There are other proposals on the table. Consider Charles Murray’s In Our Hands. His basic plan: Get rid of the welfare state and replace it with cash grants to the American people. There are obvious difficulties that Murray recognizes—including the need for an amendment to the Constitution—but it may be that, given Obama’s own attitude towards the Constitution, he could simply have the IRS give a cash grant—I’m sorry, a refundable tax credit—to every American for a set amount. Take $108 as a starting point; that’s the price, according to an editorial in yesterday’s Wall Street Journal, for a year’s supply of generic birth control pills. Or perhaps a larger sum, on a per female, per household basis, would be more preferable. If the Obama Administration wants to get contraception in our hands, then giving people money is a way to do that.
The morality of the case is different, too, from what’s going on now. The George W. Bush Administration offered a refundable tax credit—a cash grant—and there was no public outcry that the money would be used for nefarious purposes. Teetotalers didn’t fret over the booze that was about to be purchased; Planned Parenthood aficionados didn’t lament the possibility that money would be going to pregnancy centers not giving abortion referrals. Most pressingly for our purposes, I don’t remember a single pro-life group or activist lamenting the refundable tax credit because the money could be used for an abortion. Though we never want any money that we pay or give to support an action or cause we deplore, we generally consider ourselves free from responsibility if something unforeseen results from money we have spent or given. With tax dollars, we build roads. These roads are the roads that rapists, murderers, and thieves take to do their raping, murdering, and thieving. But we did not, in building our roads, support these activities, or aid them in any way. Roman Catholic charities now provide money indirectly for contraception, abortifacients, and abortions. The key word is indirectly: Doctors, nurses, and staff as Roman Catholic hospitals, and faculty and staff at Roman Catholic universities, receive their salaries for work performed. They then do what they desire. That doesn’t mean that the institution is responsible, however; the individual is.
So if President Obama only wants to get contraception in our hands, he could offer some kind of cash grant. There would, of course, be no obligation to buy contraception, but President Obama could even say—bizarrely, I might add—that he sincerely hopes people buy birth control pills, abortifacients, etc. But there would be no obligation to do so. The Obama Administration invites this kind of scrutiny, and these kinds of public debates, precisely because the money is not in our hands. Correction: The money is in our hands, but he wants to take it from us to pay for goods and services that many find deplorable.
So access is not the issue. Though I tempt ridicule at proposing reasons for the inexplicable, I’ll offer two. First, and most obviously, is political patronage. We saw the outcry against the Komen Foundation for even thinking that it could possibly withhold future funds to Planned Parenthood. Those who are not advocates for abortion think about it either as a great evil or as a difficult personal decision, a tragedy. For abortion advocates, though, it is a sacred cause—it is a civil right. So President Obama can offer the new birth control mandate as evidence of his unwavering support for a cause his donors hold dear. Second, a federal mandate of a service extends governmental legitimacy to that service. If your insurance does not cover something, then that’s a reason to question whether or not to use it. But here the issue is not merely financial; it’s moral. I don’t think that we need to assume that President Obama is being Machiavellian: He is a true believer; he wants to change, shape, and transform America’s culture, and I sincerely think he believes this moral transformation will be an improvement. The Obama Administration has rightly been mocked for proposing that women cannot afford $9 a month. But that’s not what’s at issue. It never has been, and it never will be.