Yesterday, we started to see a new push by Democrats to claim that Republicans are trying to take away your right to birth control! The bastards will not stop until you ‘uterus havers’ …
… (they don’t dare say women) …
… are barefoot and pregnant and forced to stay in the kitchen, or something.
And we don’t think we have to tell you this isn’t true. Most Republicans we know not only think non-abortifacient birth control should be legal, but they have personally used it. But Democrats are determined to bang that drum regardless of the facts:
.@JoeBiden and I support access to contraception.
Trump wants to roll back the clock.
— Kamala Harris (@KamalaHarris) June 5, 2024
That one is particularly galling, because Donald Trump has expressed absolutely zero interest in doing anything on birth control. And, with respect to abortion—which is a very different issue, from a moral perspective, from birth control—Trump’s position is that abortion should be left up to the states.
But our empty-headed vice president wasn’t the only one banging the drum:
Today: Senate GOP are expected to refuse to pass a measure that would guarantee Americans access to contraception.
If you want to be able to use birth control, consider carefully before you decide whether & how to vote in November. The threat to our rights is real.
— Joyce Alene (@JoyceWhiteVance) June 5, 2024
Ted Cruz just voted no on a bill which would guarantee the right to contraception and stop efforts to restrict access. Texans deserve a Senator that will fight to protect birth control, not put it at risk. pic.twitter.com/gEaJvz1j1g
— Colin Allred (@ColinAllredTX) June 5, 2024
Republican politicians proudly killed the right to access abortion in America.
Today in Congress they voted against the right to access birth control.
The only question is how much further they will go if given the chance.
— Pete Buttigieg (@PeteButtigieg) June 5, 2024
Don’t worry, Pete, you don’t have to worry about getting knocked up.
Republican elected officials’ extreme agenda continues to undermine access to reproductive health care.
It’s at odds with the majority of Americans.
And it’s unacceptable.My statement on Senate Republicans blocking efforts to safeguard nationwide access to contraception: pic.twitter.com/UT8RqPcIkI
— President Biden (@POTUS) June 5, 2024
You can see that they were referencing a specific vote on a specific bill and the first sign that they are misrepresenting the issue is one word: Access.
Nine times out of ten, when a Democrat says you are blocking access to a thing, they are saying they want the thing for free.
Seriously, isn’t it awful the way the Federal Government doesn’t give us free Ferraris? We demand Ferrari access, now!
And if you actually dig into the bill, that is exactly what this is, and worse. The bill wasn’t just about allowing people to buy birth control if they want it, but providing free birth control, and forcing others to provide it.
The bill in question is S.4381, the ‘Right to Contraception Act.’ We think it is deliberately and cynically written to be unacceptable to any person with any sense of morality or the actual limitations of the Constitution. In other words, we think they wanted the Republicans to reject it, so that they could pretend Republicans want to take away birth control. Rheeee!!! We think their goal was entirely cynical.
And the bill truly is a turd. It is not only is socialistic in its premise that the government should make sure you get everything for ‘free’ (even though birth control is actually very cheap), it violates the religion clauses of the First Amendment, it violates the right to freedom of expression, and it violates the Thirteenth Amendment. That sounds like an exaggeration, but you’ll see that we are right.
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The basic command of the law is straightforward enough. It says:
(a) In General.—An individual has a statutory right under this Act to obtain contraceptives and to voluntarily engage in contraception, free from coercion, and a health care provider has a corresponding right to provide contraceptives, contraception, and information, referrals, and services related to contraception.
Lest you think that the right to obtain contraception is just about people and entities voluntarily providing them, you go down to the ‘exception.’
(c) Exception.—To defend against a claim that a limitation or requirement violates a health care provider’s or individual’s statutory rights under subsection (b), a party must establish, by clear and convincing evidence, that—
(1) the limitation or requirement significantly advances access to contraceptives, contraception, and information related to contraception; and
(2) access to contraceptives, contraception, and information related to contraception or the health of patients cannot be advanced by a less restrictive alternative measure or action.
Anyone generally familiar with the issue of religious freedom will spot exactly what is going on here: They are saying that no one can claim a religious exemption from this ‘right’ to obtain contraception and information about it.
It’s literally labeled as an ‘exception’ but it is designed to eliminate exceptions to the law. George Orwell would be impressed (and horrified).
As you might know, the core of the Religious Freedom Restoration Act says:
1. In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) Exception
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
This law is read to govern other laws, as well as executive actions and so on. A simple example would be if a public school in Washington, D.C. implemented a ‘no hats’ rule on campus. This would almost always prompt people such as relatively orthodox Sikhs and Jews to sue and the court would say that the school has to make an exception for their religious practices.
There is more to it than that—for instance, a requirement that the religious belief be sincere—but you get the idea.
It honestly acts almost like a constitutional amendment, invalidating other laws, except it can be repealed or amended by an ordinary law.
It was originally enacted after Employment Division v. Smith, 494 U.S. 872 (1990) and it’s worth discussing that case briefly. The short version is this was a challenge to Oregon’s prohibition on the use of poyote, by members of the Native American Church who believed it was necessary to practice their faith, much like many Christians believe they must consume wine.
However, in a rare misstep, Justice Scalia wrote a majority opinion that said that if a law was generally applicable, it is constitutional even if it incidentally steps on religious faith. So, because peyote was flatly banned in Oregon, instead of being banned only when used in religious ceremonies, that ban didn’t violate the First Amendment.
This author is of the opinion that this is a bit too cute. The reality is that the faith of the majority or a group the majority would sympathize with is not likely to face these kinds of unwavering bans. For instance, while not every Christian believes that you have to drink wine—this author’s own church almost always uses grape juice—all Christians can sympathize with those Christians who believe that communion/thanksgiving has to include some wine. So even when there are prohibitions on the use of alcohol, there are exceptions for religious use—either literally written in the law, or just existing as a matter of practice. Similarly, while Jews are a minority in America, the vast majority of Christians (and most non-Christians) sympathize with them enough today that if a neutral law needs an exception for Jewish religious practices, that exception would be made.
The danger is that groups that don’t get as much sympathy for whatever reason won’t get exceptions when a more popular group would. So, a county might ban alcohol and peyote, and make a religious exception only for alcohol and not peyote, because of a lack of sympathy for Native American faiths.
Of course, rational people also understand that you can’t be allowed to do whatever you want, in the name of your religion. There has to be rational limitations to this principle. For instance, if someone says that they wish to engage in human sacrifice based on their faith, most rational people think the law shouldn’t allow for that.
So, responding to this decision, Congress passed the Religious Freedom Restoration Act, and a number of states passed similar laws and we think that these laws strike a better balance. Under this federal law, ff a generally applicable law accidentally outlaws a person’s religious practice, then the government needs to show that its need to enforce this law is compelling and it is the least restrictive means. This allows for rational exceptions to generally applicable laws but it can still say ‘but you can’t just kill a person just because you think your god demands human sacrifice.’ It brings rationality to the law.
Thus, once you understand all that background, you realize what this ‘exception’ to this contraceptive access law is all about. It is basically commanding the courts to find against anyone who might sue under the Religious Freedom Restoration Act. But rather than openly say that they were making an exception to the law, they were commanding the courts to find that, regardless of facts and logic, that every measure to force other people to provide contraception is justified with a compelling purpose and there is no less restrictive means.
In short, it was designed to undo the legal victories obtained by Hobby Lobby and the Little Sisters of the Poor, both of which objected to providing either abortion or non-abortifacient birth control, and successfully fought against Obamacare’s requirement that they provide such services and medicines. It was particularly galling that a group of nuns were required to provide abortion and birth control, because these nuns were supposed to be celibate, anyway. And this allegedly ‘devout Catholic president’ and his party want to force those nuns to violate their faith.
Would this actually work, if it became a law? We could imagine a First Amendment challenge to this ‘exception’ that eliminates exceptions. The argument would go like this. Under the religion clauses of the First Amendment, the government has to treat all religion and religious beliefs equally. Yet, the government has singled out the belief that using birth control is wrong and stripped it of legal protections provided to literally every other religious belief. That would appear to be a violation of the First Amendment.
And, of course, there’s been a lot of water under the bridge since Scalia’s mistake in Smith. For instance, in Fulton v. City of Philadelphia, Pennsylvania, 141 S. Ct. 1868 (2021), Justices Barrett, Kavanaugh, Alito, Thomas and Gorsuch all indicated that they thought Smith needed to be reversed. The only reason why the decision survived that case appears to be that Barrett and Kavanaugh believed they didn’t have to decide whether to overturn Smith in that case. We have argued before that the best reason to give Trump a second term was his nominations to the Supreme Court, and this only reinforces that point.
So if Smith is overturned, then the Supreme Court would ask how much religious freedom the Constitution provides in that situation, and we think that the supposedly devoutly Catholic Biden wouldn’t like the answer to that question. Moreover, this statute’s attempt to dictate factual findings would have zero chance of success in a constitutional case.
There are other problems with this law, though, than just the fact that it would impact religious expression. For instance, the same statute would require people to provide information about birth control. That would be compelled expression, which is a violation of freedom of expression, since freedom of expression includes the right not to express yourself.
And as bad as all of that is, it would seem to violate the Thirteenth Amendment’s prohibition on involuntary servitude, since it would appear to require pharmacists to fill out subscriptions for birth control and to keep birth control products on their shelves. The typical response is to say ‘you volunteered to do this when you sought to be a pharmacist’ but we simply don’t buy that as an argument.
And there is a more basic question of whether Congress could actually proclaim facts to be true, when they actually aren’t. They want to say, at least in Religious Freedom Restoration Act cases, that the courts must find that there is a compelling purpose in obtaining contraception, and that there this law is the least restrictive means. We can debate whether that first claim is true, but the second obviously isn’t. If the Federal Government wants to provide birth control to the women who serve the Little Sisters of the Poor, there is a less restrictive means than forcing the organization to provide it for their members: Congress could create a program that provided such benefits directly. If there is a pharmacist not providing birth control—which is a pretty rare event, anyway—there’s almost always someone nearby willing to do so. And as for providing info, why can’t the government provide information itself? Why does it have to violate a person’s right to freedom of expression to get the information to people? The government has websites, NPR, PBS … what exactly is stopping the government from telling people about birth control directly?
Indeed, in the Hobby Lobby case (Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)), the Supreme Court said almost the exact same thing about forcing Hobby Lobby to provide essentially abortion pills:
The least-restrictive-means standard is exceptionally demanding … and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases.
The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, … that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA, are designed primarily for emergency use. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurance-coverage provisions will cost the Federal Government more than $1.3 trillion through the next decade. … If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal.
What this law basically wants to do is to deem the Supreme Court to be factually wrong in Hobby Lobby, rather than prove that this law is the least restrictive means to get women birth control. They think that the Supreme Court has to pretend what Congress says is factually true, even though it is obviously false and they previously lost the argument. We doubt the Supreme Court will let them do that. More likely, it will decide that this usurps the judiciary’s fact-finding function and, therefore, violates the principle of separation of powers.
So that’s a lot of the purpose of this law—to provide a right to not only get birth control if you find a person willing to give or sell it to you, but also to force people to pay for it, to fill the prescription and provide information about it. The other point of this law is to ‘codify Griswold.’ That would be Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court decision that said that we had a constitutional right to birth control.
There’s been this weird myth going around in leftist circles that if only Congress had passed a law, that they could have prevented the Supreme Court from overturning Roe v. Wade or they could have imposed a right to abortion by Congressional statute. These people, frankly, understand very little about the Constitution. The Federal Government can’t just do whatever it wants. It simply can’t override state laws willy-nilly. If there was a law attempting to ‘codify Roe,’ the only change it would have made to the decision overturning Roe is forcing Alito to write a few extra pages explaining why Congress can’t do that.
But this myth has also led them to think they need to codify Griswold, which is a waste of everyone’s time, anyway.
As for the fear that Griswold might be overturned … on one hand, we think the decision is on pretty shaky ground because it’s a bad decision. That decision claimed that there was an unwritten right to privacy that wasn’t found in any particular amendment but was found in the shadows (the court used the synonym ‘penumbras’) of other amendments and that a ban on birth control violated it. Yes, really. Let’s quote the decision:
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’
This was some of the least judicial verbiage written in Supreme Court history, flowery language designed to cover up that they were effectively amending the Constitution without going through the procedures set out in Article V. The reality is that the founders were not even thinking of birth control when they founded the original Constitution or ratified the Fourteenth Amendment in 1868. Thus the correct reading is that the federal government is denied any power at all in that arena, while citizens will have to work it out in the states. So the decision is on wobbly ground, simply because it is B.S.
But the Supreme Court is not likely to overturn that decision because even if they wanted to (and we don’t think they will bother) the Supreme Court needs a case to do that and we have trouble seeing how such a case could manifest itself. Before there could be a case challenging Griswold, you’d first need a state to actually pass a law banning non-abortifacient contraception. Then someone could challenge the law, claiming that they want to use such birth control or that they are a health care provider who wants to provide it. Then that challenge could eventually go to the Supreme Court.
But the first step hasn’t happened. We are not aware of even a proposal to ban birth control, and we don’t think there is an appreciable will to pass such a law. You might find some crank somewhere who thinks we need to ban birth control, but that view is going nowhere.
So, Democrats saying that Republicans want to undo the right to birth control is a bit like saying that Republicans want to deny the right to hug your dog. Yeah, there isn’t a literal constitutional right to hug your dog, but no one really wants to ban it, either. The Connecticut law in Griswold was truly an outlier and it was probably only tolerated because people could so easily evade it. This author’s law school was in Connecticut and it was intimately involved in Griswold—one of our professors knew Estelle Griswold personally—and from what we hear, it was not hard to get birth control as contraband, anyway. The ban was largely on paper.
Ultimately, the Constitution is actually a risk reduction device. The founders wrote each part of the Constitution because they wanted to control for some kind of risk. The parts of the Constitution that simply structure the government—setting up the three branches—are there to avoid the risk of fighting over which branch has which powers, and to prevent one side or the other trying to change the rules in the middle of the proverbial game. Also, they built in what we disparagingly call ‘gridlock’ because they believed that bad ideas were less likely to get passed if they did that. Meanwhile, the rights guaranteed in the Constitution are based on the fear that some future generation might attempt to do something the founders were afraid of. The First Amendment’s guarantee of freedom of expression is placed in the Constitution because the founders were afraid that a subsequent generation would try to ban dissent. The Second Amendment was written originally because they were afraid the Federal Government would try to disarm the populace to prepare them for other forms of oppression and it was extended to the states, because the founders of the Fourteenth Amendment recognized that states might do the same—especially to the newly freed slaves.
So, what rational fear would lead us to think we need a constitutional right to birth control? None that we can see. But it won’t stop the Democrats from fear-mongering. Democrats accuse Republicans of trying to use ‘wedge issues’ to peel away voters who might normally support them, but plainly this is a case of the Democrats accusing the accusers of what they are actually doing. They are trying to convince everyone that Republicans want to ban birth control by proposing a law so radical you wonder how any rational person can support it. Thus when it is stopped by Republicans (it was technically a vote on cloture), confused voters will vote for Democrats even though they think Democrats are the worse choice on a multitude of issues like the economy and the border. They are gambling on regular people not looking into it, and letting themselves be fooled.
Don’t fall for it.
