Those decrying the Hobby Lobby decision would rather have seen the court declare that Congress had the power to mandate contraceptive coverage over any and all objections. The Left’s reactions lacked even rudimentary understanding of legal reasoning. Laymen were willing to toss out Constitutional protections as well as centuries-old practices because they found them inconvenient in this single instance. The idea of old, established reasoning did not pique their curiosity—why might that idea have endured for centuries?
(The idea in question is corporate personality, which, in fact, protects individuals from oppression and discrimination by denying governments a path around an individual’s rights just because that individual formed a business entity. Corporate personality is centuries old and first appeared, almost as an assumption, in a Fourteenth Amendment case, protecting the members of the corporation from discrimination.)
Ross Douthat, favorably quoting an article from Mother Jones, described how the Left is so invested in being the cultural underdog that they cannot see reality. It is an excellent read, but the truth of his second point has stood out for me:
Second, political mobilization also requires a certain amount of ignorance, willful in some cases and cynically inculcated in others, in which the inevitably-complicated details of legal controversies (you see, the Religious Freedom Restoration Act says …. YAWN …. actually, Hobby Lobby already covers most …. zzzzzz) get boiled down to slogans fit for Twitter and cable shoutfests, and no nuancing counterpoint is allowed to be considered.
I readily agree with the observation, but see more disaster courted than slogans and shoutfests. Ignorance produces a failure of imagination. The culture warriors of the Left too often assume the government will be in their favor. For all of their fear-mongering language, in practice they centralize their policies to protect them. Conservatives consider this naive. One of our primary practical objections to government is the notion that a government powerful enough to grant you rights is powerful enough to take them away. That’s why certain rights are hard to burden, no matter how practical a burden might seem to third parties, and why we don’t tend to prefer centralization.
The Left’s imagination is failing before our eyes. To rely on government to mandate contraceptive coverage is to give government the power to control contraception.
The Possibility Of Requiring Pregnancy
And so a hypothetical: what if Progressives figure out in a decade or so that low birth rates are killing the welfare state? This isn’t far-fetched. The data is plain and influencing policy all over the world. Germany, Singapore, Japan, Russia, and others are already pushing for pregnancies for this exact reason. (In addition to Singapore’s fertility fairytales in the previous link, they also did this “Let’s Make a Baby” PSA with Mentos. Yeah, the mint company whose slogan is “The Freshmaker,” that’s the one.)
But tax incentives and childcare schemes aren’t working. Women still aren’t going for the necessary third pregnancy to reverse demographic decline and save their social welfare states.
Some of these countries already restrict abortion in ways that would shock our Leftist culture warriors. (For example, a summary of abortion law in Germany: illegal without an approved consult and waiting period, limited to the first trimester, and paid for by the woman, not public insurance.) Will these governments decide to restrict contraception? Romania did it in the 60s:
[Nicolae Ceausescu] began his campaign [to increase fertility necessary to maintain the communal state] in 1966 with a decree that virtually made pregnancy a state policy. ‘The fetus is the property of the entire society,’ Ceausescu proclaimed. ‘Anyone who avoids having children is a deserter who abandons the laws of national continuity.’…Ceausescu made mockery of family planning. He forbade sex education. Books on human sexuality and reproduction were classified as ‘state secrets,’ to be used only as medical textbooks. With contraception banned, Romanians had to smuggle in condoms and birth-control pills. Though strictly illegal, abortions remained a widespread birth-control measure of last resort. Nationwide, Western sources estimate, 60 percent of all pregnancies ended in abortion or miscarriage.
Note: the motivation for restricting family planning wasn’t sanctity of life, social conservatives’ rationale against some contraception and abortion. Romania under Ceausescu cared little for the lives created. (Research on child neglect is based on Romanian orphanages because it was prevalent.) The motivation for forced pregnancy was producing labor to sustain the Romanian welfare state. This is a Progressive temptation. Similarly in the links above, consider how quickly Singapore moved from the “Stop at Two” campaign to the “Have Three or More (if you can afford it)” when they realized the effects of their falling birthrates. The government policy turnabout took about a year. Also note the eugenics at work. The campaign didn’t say “if you can afford it” out of practical consideration but because the government wanted educated women to reproduce. Accompanying policy granted tax breaks to less-educated women who had sterilization procedures after one or two children.
In the United States, a decision against Hobby Lobby would have opened the possibility for a future U.S. government to remove contraception coverage requirements, or even forbid them, in the name of Progressive public policy, of course. Do advocates of reproductive choice really want to give government that kind of power? If they truly want to keep their reproductive choice, they’d be wise to get the government out of the position of paying for it or mandating someone else to pay for it.