Mark Silk Says Pro Lifers Should Support Contraception Mandate - A Response

Prof Mark Silk has a column up at Religion News Service called Anti-abortion movement should support contraception mandate.

He says in part :

 But Catholics consider abortion a far greater evil than contraception. And most other religious opponents of the mandate think contraception is just fine, at least for married women. So if there’s strong empirical evidence that contraception use reduces abortion, why fight the mandate all the way to the Supreme Court? Isn’t the anti-abortion cause worth a little religious liberty?

First Prof Silk just bypasses the fact that a part of the dispute is that many think a few of the drugs and procedures mandated actually cause a termination of a life. However lets skip that rather glaring omission.


Has Prof Silk been listening to the legal  arguments for the HHS contraception mandate recently ? The arguments being an employer has no  right to make choices as to private matters involving a woman's reproductive health for instance. That a employee's religious liberty is being interfered with by of the employers religious views. In essence some wish to make a  business a state actor.

No matter what you think about the Affordable Care Act ,  aka Obamacare , there is no doubt that what it did was very novel in many ways as a matter of law . This has implications here.

As Law Prof Josh Blackman recently stated in his post Is Hobby Lobby Imposing its Religious Beliefs on Its Employers?

But nowhere did I see any mention of a really important fact–the state action doctrine! All of these cases involve laws passed by the government that burdens religion. Here, we are talking about the actions of Hobby Lobby, a private corporation, that owes absolutely zero constitutional duty to the religious beliefs of its employees. Zip. None. They have to comply with any applicable nondiscrimination laws, and cannot discriminate against employees based on their religion, and must make reasonable accommodations for religion. But this does not translate to some sort of constitutional protection against establishing a religion in a craft store.

Another point not mentioned in this debate is that no one is forced to work for Hobby Lobby. If the package of benefits (and that’s what we are talking about) at Hobby Lobby is so insufficient, the employees are free to work anywhere else. In contrast, of course, one cannot avoid the long arm of the government if you do not like its policies (other than foot voting).

What’s lurking underneath this column is a point made several times at Balkinzation. That the ACA changed everything! That we have a new “baseline.” Now healthcare is not merely some fringe benefit, but a legal right. And to deny employees this right is so significant. Specifically, as Joey Fishkin argued, in the “post-ACA world,” Hobby Lobby is “acting partly on behalf of the federal government.”

You see what happened there? This logic makes the WaPo argument work. Hobby Lobby is not some mere private actor, but is in essence a cog in the federal machinery that guarantees healthcare to anyone. Employees should no longer treat health insurance as some sort of benefit, but now must demand it–and the employers’ religious liberty should not stand in that way.

I see strong parallels to arguments concerning the ability of religious employers to terminate non-religious employees for religious reasons. Though, employment in that context is not (yet) viewed as some sort of right that the employer must offer. (In many countries in Europe, this is the prevailing wisdom).

The significance of Hobby Lobby, I have come to realize, goes far beyond RFRA or birth control pills. Instead, the ruling would either legitimize or challenge the consolidation of the relationship between the individual, the employer, and the state, under the auspices of the ACA, in a way we have not yet seen.

That I think is very correct. Be sure to his follow up post here on the vast implications of creating a Private Establishment Clause . Despite Prof Silk assertions  we are dealing with more than just " a little " religious liberty that could be lost .

The legal and political winds of abortion politics are very much in flux.  The Pro Life movement correctly understands that if a certain precedent is set in the HHS contraception mandate cases it could very well open up the door to employers having to pay for abortions. That I don't think is an absurd slippery slope argument when we consider many of the LEGAL  arguments for the HHS contraception mandate that are being made now.

The real fear the anti abortion movement is what happens after the HHS Contraception mandate. I think its very reasonable the forces of " reproductive justice " will seek both legal and political means to expand this mandate to abortion.

Last but not least Prof Silk ends his piece with this little parting shot.

You’ve got to think that it’s not just the termination of fetal life that concerns those opposed to abortion rights. It’s anything that gives freer rein to women’s libidos. Like Mike Huckabee said.

We shall let pass that Prof Silk is not really giving the Huckabee quote in context.

 However it should be noted that the majority of non Catholic plaintiffs in these suits have no problem covering most forms of birth control. In fact Hobby Lobby covered and still has no objection to most forms of FDA approved birth control. The fact is public opinion polls shows a vast number of people have huge reservations about the HHS Contraception mandate. No doubt a vast number of these people and families that have objections  have used or currently use birth control.

While Prof Silks parting shot is a great one liner  it is not very illuminating of reality.