“Rights” of Obamacare

Abraham Lincoln’s argument with Stephen Douglas came down to a disagreement over the Declaration of Independence. Lincoln articulated this disagreement with special gusto in his critique of Douglas on July 10, 1858.

According to Douglas, the teaching of the Declaration had no general applicability beyond the immediate situation that confronted the Founding Fathers. Restating and paraphrasing Douglas’s argument, Lincoln asked “in all soberness, if all these things, if indulged in, if ratified, if confirmed and endorsed, if taught to our children, and repeated to them, do not tend to rub out the sentiment of liberty in the country, and to transform this Government into a government of some other form.” This is certainly one of the question that is raised in acute form by the doctrine of welfare state liberalism in general and by Obamacare as a case in point.

At the oral argument of the Hobby Lobby case, Justices Ginsburg, Sotomayor and Kagan came loaded for bear. (The Supreme Court has posted a transcript of the oral argument here.) Elaborating on a little-noted aspect of the case, Betsy McCaughey provides the background and reviews the proceedings:

A startling rift appeared Tuesday on the Supreme Court as the three female Justices came out swinging like Brunnhildes — women warriors — for what they erroneously labeled an “entitlement” to employer-provided contraceptives and morning-after pills.

The Justices were hearing oral arguments in Sebelius v. Hobby Lobby Stores, Inc., a case hyped by the Democratic Party as a test for women’s rights. Justices Kagan, Ginsberg, and Sotomayor sprang on Hobby Lobby’s attorney, interrupting his every sentence and pummeling him with questions taken right out of the Democratic Party’s “war on women” playbook.

That playbook was laid out in a brief that had been filed by 19 senators and 91 members of the House, all Democrats , supporting the Obama administration’s legal war against Hobby Lobby, a chain of craft stores that provides health insurance to all employees but refuses to cover morning-after pills such as Plan B and Ella. The owners, the Green family, try to run their business according to Biblical principles, including closing on Sunday, foregoing hauling beer even when their trucks have to run empty, and not providing abortion drugs.

Senator Murray claimed that “What’s at stake in this case before the Supreme Court is whether a CEO’s personal beliefs can trump a woman’s access to free or low-cost contraception under the Affordable Care Act.”

Nonsense. Not one word in the Affordable Care Act guarantees health plans will cover birth control products. There is no right. President Obama and his Secretary of Health and Human Services added that requirement by regulation. Women have a constitutionally protected right to use birth control, but nothing guarantees that they can get it from an employer.

It was shocking to hear Justice Kagan make the same spurious claim — that women are entitled to employer provided contraceptives — during oral argument: “Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage.” Wrong, Justice Kagan. Did you also forego reading the law, like most members of Congress?

The distinction between a regulation and a law is no small matter. As Hobby Lobby’s lawyer stressed in his closing statement, a statute, in this case Congress’s Religious Freedom Restoration Act, trumps a regulation.

Congress passed the Religious Freedom Restoration Act in 1993 expressly to shield believers such as the Green family from any government requirements that would impinge on their ability to practice their faith.

Justice Kagan showed little patience for that concept, and asked whether a victory for Hobby Lobby would invite employers to object to other treatments, such as blood transfusions and vaccines.

“So one religious group could opt of out this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform.” Correct, Justice Kagan. Her vision of a uniform society where all are forced to put aside their diverse beliefs and march in lockstep with the government’s mandates, sucked the oxygen out of the courtroom.

The “right” or entitlement to employer-subsidized abortifacients at issue in Hobby Lobby is a pure creation of the administrative agencies enforcing the regime of Obamacare. It is an artifact of the state. It has nothing in common with the rights proclaimed in the Declaration. It has nothing in common with the rights protected by the Constitution. Indeed, as the Hobby Lobby case illustrates, the administrative state is at war with these rights.

Welfare state “rights” created by Congress or administrative agencies differ and conflict with the rights to life, liberty and the pursuit of happiness. They are claims on the liberty of others. If I have a right to medical care, you must have a corresponding duty to supply it. If I have a right to a decent home, you must have a duty to provide it.

The argument for the welfare state belongs in the same family as “the arguments that kings have made for enslaving the people in all ages of the world. You will find that all the arguments in favor of king-craft were of this class; they always bestrode the necks of the people, not that they wanted to do it, but because the people were better off for being ridden.” That’s Lincoln again.

Lincoln memorably derided the underlying principle as “the same old serpent that says you work and I eat, you toil and I will enjoy the fruits of it.”