The Constitutional Right to Free Stuff

Last night Brian Ward and I taped the latest episode of the Hinderaker-Ward Experience, which will be available for download later in the day. One of our Loon of the Week candidates was Barbara Boxer, talking about the Obama administration’s decree that all employers, including religious institutions, must provide health insurance benefits that include contraception and certain abortion services, for free. Congressional Democrats, including Ms. Boxer, turned out in force to support the administration and to demonize those who objected to the administration’s infringement of religious liberty (and other rights, too, of course). In this clip, Boxer hails the “triumph” of “women’s health over right-wing politics.” Sure, that’s an objective way of putting it! Next she says that “health care for our people should never be politicized from any side.” But of course, the administration politicized health care by enacting a statute, Obamacare, that purported to subject everyone’s health care to federal law, and then by issuing a fiat that brought the coercion of the state to bear against millions who chose to exercise their religious freedom.

What I really want to focus on, however, is what comes next: “There is almost hand-to-hand combat over the issue of birth control going on, and I thought that was resolved in the 60s with the Supreme Court case at that time…” Here is the clip:


Boxer refers to Griswold v. Connecticut, the case in which the Supreme Court discovered a right to privacy in the Constitution and held that it was unconstitutional for a state to ban the sale of contraceptives. In my view, Griswold was wrongly decided. The Constitution says nothing about privacy, let alone contraception or abortion, and the highly selective forms of “privacy” the Court has chosen to protect flow only from the justices’ political and social preferences, not from any basis in the text of the Constitution itself.

But that was a digression: the point here is that Griswold held that people have a right to buy contraceptives, not have the state provide them for free, or force someone else to provide them for free. (Only, of course, under the administration’s plan they won’t actually be free; the cost of contraception and abortion services will be included in the basic premium for the health care policy.) No one is now trying to ban the sale of contraceptives; the question is whether certain people will be forced to pay for contraceptives and abortion procedures through their health insurance premiums whether they want them or not. This distinction is so elementary that it is hard to believe that it escaped Ms. Boxer, even though she is regarded as one of the dimmest bulbs in Congress. Liberals often fudge such obvious distinctions; whenever you hear the word “access” you can assume that something of the sort is going on.

To put the point in extremely simple terms, suitable for Ms. Boxer: I have a constitutional right to own a gun, but I do not have a right, constitutional or otherwise, to make anyone–the taxpayers, an insurance company, or anyone else–pay for my gun.

SCOTT adds: John, I would say that the right to privacy, properly understood, is one of the rights that is referred to in the Ninth Amendment to the Constitution.

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