Washington Post columnist Kathleen Parker writes about the intimidation tactics wielded by the Left against the Catholic Church with Obama’s Free Birth Control Rule and in the How Dare Komen defund the sacrosanct Planned Parenthood! brouhaha. She starts her column with an unintentionally false assertion. From “Komen, Catholics and the Cost of Conscience:”
Two of the top news stories this week have revolved around reproductive rights, though both raise far more troubling issues than a woman’s right to contraception or abortion.
Parker is writing loosely, but this is an important liberty point: Women don’t have the “right to an abortion,” as in, the constitutional right to obtain it under force of law. Ditto contraception. That would be a positive right to receive the service or procedure. There is, as yet, no such positive right to either Indeed, that is what the fight over medical conscience is all about.
Women do have the right to obtain it if they can find a willing provider–a negative right against state interference with that “choice.” Neither Griswald v. Connecticut, which prevented the state from restricting birth control to married couples (how quaint), nor Roe v. Wade, which prevented the states from criminally punishing abortion in most cases, created positive rights. They created negative rights.
Negative rights–and let’s not argue here whether Griswald or Roe were properly decided–promote personal liberty by limiting the power of government over the actions of individuals. In the abortion case, both the woman and the non willing doctor have the right to seek and refuse. Positive rights, on the other hand, expand the power of government dramatically by guaranteeing access to actions or services deemed entitlements. Thus, in the Free Birth Control rule, Obama is destroying the enumerated negative right of Catholic organizations to the free exercise of their religion. Many also wish force medical professionals to participate in abortion and contraception dispensing as the price of being licensed.
The difference between a society based primarily on negative rights and one primarily based on positive rights (and no society is all one or the other) is the difference between the American Revolution (negative rights) and the French Revolution (positive rights). President Obama and political progressives tend to support the establishment of broad positive rights as a way of imposing their social, cultural, and ideological beliefs on everyone, even at the expense of deconstructing existing constitutionally enumerated negative rights–precisely the opposite of the ”tolerance” and “diversity” for which they falsely credit themselves.
February 4th, 2012 | 3:33 pm
Great analysis!
February 4th, 2012 | 3:33 pm
It seems, then, that the SHS mandate requiring coverage of sterilization and birth control, including abortifacients, is an attempt to establish a kind of non-legally established bulwark of positive right to contraception.
Reading comments on the articles covering this — especially those calling out the President and identifying this requirement as unConstitutional– two major things stand out to me.
1) The critical comments reveal an overwhelming fixation on the evils of the Catholic Church rather than any attempt to engage with the question of whether this is an example of overstepping against religious liberty, and
2) An already-established view, in the minds of critical commenters, that there IS a positive right to birth control (much less abortion) and that it is as basic to health care as the right to have a bleeding artery sutured or a broken leg set.
This is drawn from comments, of course, which is not a representative sample but it seems to me that there is already an enormous amount of prejudice and an inability to engage intellectually with the real issue. Which means that it will not be taken up properly, no matter what happens.
I also wonder if the President is planning to go through with this or if his idea is to pull back on it closer to the election so that the relenting (ala Komen) is fresher in the minds of the Catholic people and the Conservative ones will reward him with their votes. (Liberals being likely to have been in his corner before this whole thing will revert to default.)
Wesley J. Smith Reply:
February 4th, 2012 at 3:56 pm
Yes. It is a positive legal right for all female employees to obtain free contraception, sterilization, etc. by requiring all employers to provide health insurance so providing, with the narrow exception of houses of worship. If the employers to not provide the positive action to the employee required under the law, government will punish or compel them in some fashion.
The issue of birth control is really not relevant to this. It is the abridgement of the specifically unumerated negative right in the constitution that is supposed to prevent the government from interfering with the free exercise of religion, which this rule clearly does.
HistoryWriter Reply:
February 7th, 2012 at 1:26 pm
@Wesley J. Smith,
Trying to make this a religious freedom issue is absurd, as churches are specifically excluded from the requirement. The right of government to regulate interstate commerce (i.e., the insurance industry) trumps any conjectured “religious rights” that enable secular business corporations to ban contraceptive coverage in employee benefit plans.
HW
February 4th, 2012 | 3:38 pm
Wesley Smith, I am not a lawyer – which my question makes clear – but isn’t the negative for one contender a positve for the other? Or is it simply that the right does not thereby become an entitlement?
Wesley J. Smith Reply:
February 4th, 2012 at 3:52 pm
The negative right is best expressed in, “Congress shall make no law…” Thus, I have the negative right to free speech in writing this blog, meaning the government cannnot prohibit it because they don’t like what I post (within certain limitations, no right is absolute). But I do not have the right to be read. If I did, that could be said to be a positive right, that is, if I could require under force of law people to read my blog, it would be a positive right. Or to put it another way, I have a right to speak but not to be listened to.
If a woman had a positive right to an abortion, she could compel the state to provide it in some manner, perhaps with a law requiring doctors to perform the abortion on request or find a doctor who will–as currently is the case in Victoria, Australia. But at least for now in the USA, she has the right to seek and obtain an abortion if she finds a doctor willing to do it. She can’t compel anyone to provide it for her.
February 4th, 2012 | 6:01 pm
The PP/Komen kerfuffle is missing the point:
PP doesn’t do mammograms to screen for breast cancer. If they are giving out the pill, they should be doing a routine breast exam.
But the Breast Cancer screening guidelines suggest neither breast exam nor teaching self examination has been proven to lower the risk of breast cancer.
http://www.uspreventiveservicestaskforce.org/uspstf/uspsbrca.htm
The dirty little secret is that breast cancer before menopause is fast growing and aggressive, and finding it “early” doesn’t make a difference. For post menopausal women, where the cancer grows slower, it does. Yet how many post menopausal women are seen by PP?
so if the American cancer society wants to fund them to do pap/HPV testing, to prevent cancer, fine. But there is no rational reason for a charity that funds breast cancer to do so.
February 5th, 2012 | 4:05 am
It will be another 50 years before people understand that stuffing women full of hormones to increase sexual accessibility (while attenuating their mood for it) is not the way to go. Those steroid hormones are fraught with untoward side effects and associated health hazards.
People are very slow. But a few are starting to notice that the male market for BC hormones has remained so soft that the companies have all but abandoned attempts to produce novel drugs in that category. Men wouldn’t do that to themselves.
As for Obama stepping on the first amendment….. he’s stepping on more than that. He’s got a plan to enslave the health care professionals who are involved in direct patient care.
Do you know who will eventually emancipate the health care professionals in the U.S.? The Muslims! They’re doing it in Europe now, after what’s left of the Christians there sat down on the job.
David Reply:
February 5th, 2012 at 5:29 pm
@Pharmer1, amen, brother! Tell them slow people the truth! When will women get off the pill and get some IUDs, tubals, or barrier contraceptives? And when are we going to stop forcing women at gunpoint to take “the pill”? Thank God he made men smarter, so all of us with external genitalia are able to make the proper decisions which control women. Men take care of theyselves so much better. I’ve never heard of red meat, salt, and alcohol harming people. That’s why men live longer. Big Pharma can’t touch us, either, and that’s a good thing – because it’s trivial to kill billions of sperm daily vs. targeting a hormonal cycle. And, I used to be scared to death of them muslims, but now I’m glad we finally have one for a president. Until proper, white, Christian health care professionals force their religious values on us, we will have to wait for Sharia Law to liberate us.
February 5th, 2012 | 10:56 am
This makes sense. Obama doesn’t like being limited by negative rights. He wants positive rights for obvious reasons. http://www.youtube.com/watch?v=OkpdNtTgQNM
February 6th, 2012 | 8:07 am
It seems, then, that the SHS mandate requiring coverage of sterilization and birth control, including abortifacients, is an attempt to establish a kind of non-legally established bulwark of positive right to contraception.
Yep.
At the expense of who knows how many other rights – or freedoms, or virtues, or other goods that society might have reason to value.
If only we could discuss this in a way that isn’t laden with short-term emotional appeals, deliberate manipulations, and outright bullying. I doubt many people would rationally choose to give up what will end up being sacrificed, if they were actually given a right to informed consent.
February 6th, 2012 | 8:58 am
Thank you, Wesley, for the helpful explanation of positive and negative rights. This will help me better explain the HHS controversy to my colleagues and members of my congregation.
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