Saturday, February 11, 2012


The lead editorial in this morning's NY Times contains the following strange statement: "Churches are given complete freedom by the Constitution to preach that birth control is immoral, but they have not been given the right to laws that would deprive their followers or employees of the right to disagree with that teaching." What law does the Times have in mind? What law - existing or proposed - "would deprive their followers or employees of the right to disagree with" the Church's teaching on the immorality of artificial contraception? There is, of course, no such law, nor is there even any law which would forbid any adult from actually using contraception. What has been at issue in recent weeks has been whether the power of the law shall be used to coerce religious instituions to pay for other people to do things a religion disagrees with, by creating a legal right to have contraception included in employer-provided health insurance. If only the Times editorial staff could get out of their ideological echo chamber long enough to grasp that simple distinction!

Part of the problem, it seems to me, is the way "rights" language has been gratuitously inflated in recent decades. It may be advantageous politically to invent a new "right" whenever one wants to propose a particular policy, but it has had disastrous results for the clarity and coherence of our political and moral debates. Legal rights may either positively entitle someone to something or they may merely negatively prohibit the government from preventing something. Assuming the requisite qualifications, I have the legal right, for example, to vote and the legal right to drive a car. A year from now I will have a legal right to Medicare. These are positive legal rights created by the State entitling me to do something or receive something.

But many legal rights are negative, that is, they proscribe government action leaving the citizen free as to what he or she will actually do. Thus, the constitutional rights to freedom of speech and freedom of the press prohibit the government from preventing me from freely expressing my political views. But those constitutional rights do not impose a positive obligation on the government actively to assist me to exercise those rights. Freedom of the press does not, for example, require the government to pay for me to start a newspaper or to subsidize one already in existence.

When the Supreme Court invented a "right to privacy" in Griswold v. Connecticut, it struck down state laws denying married couples access to contraceptives. Eventually extended to everyone, there is, therefore, now an acknowledged constitutional right not to be prohibited from using contraception by the government. But no positive entitlement is thereby automatically created. In other words, just because the government may not prohibit someone from using contraception, it does not follow, therefore, that the government. must directly provide contraception or pay for anyone's contraceptives - let alone compel other private citizens to do so.

This is one reason why I have always cringed when I hear well intentioned people talk about a putative "right to health care." I have always favored the provision of universal health care by the State - whether directly (as in Medicare) or through private insurance (as in "Obamacare"). I can easily understand why advocates of such policies would want to use whatever language advances their cause. But this constant inflation of political preferences into "rights" only leads to conceptual confusion - such as we are now seeing.

By the "right to health care," those who use such language obviously do not mean that the government must be prohibited from preventing me from seeking or receiving health care. What they mean rather is that someone else - the taxpayers, insurance companies, whoever - should be compelled by the government to pay for my health care. Since, however, health care is a very expansive concept, which can expand according to different needs and desires (not to mention expensive advances in technology), the concept of some generic "right to health care" is even more imprecise in practice than it is in theory. Exactly what kinds of health care and in what amounts and at what cost are included in such a "right"? All of which then takes the discussion out of the domain of "rights" and back, where it belongs, in the domain of public policy choices to be determined, not by some a priori rights but by political deliberation and debate. Of course, the resulting policy, once enacted in legislation and regulations, creates certain legal rights. Thus, a student may acquire the legal right to remain on his or her parents' insurance until a certain age. Or someone with a pre-existing condition may acquire the legal right to be provided with insurance in spite of that fact. Or, to speak to the present issue, one may acquire a legal right to be covered by insurance which includes contraception without any co-pay.

But, before any of these policy preferences become legal rights, they are first of all policy decisions, to be arrived at through the normal give-and-take of politics. They don't start out as rights, even if they may end up as legal rights. And, even then, they are not constitutional rights - let alone natural rights - but simply legal entitlements, which can always be changed by the same sort of process which created them.

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