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Care That Liberty Cannot Afford…

March 25, 2014


“What is liberty without wisdom and without virtue?  It is the greatest of all possible evils.” – Irish statesman and philosopher Edmund Burke

By Michael Berry: Today is Tuesday, March 25, 2014.  The United States Supreme Court will hear arguments on behalf of two private, for-profit corporations, Hobby Lobby Stores, and Conestoga Wood Specialties Corporation.  For ninety minutes, the nine Justices of the Court will hear arguments for and against the government’s authority to require private businesses, under threat of penalty, to provide contraceptives to their employees under the Affordable Care Act (ACA).

For law and policy wonks, the case presents a fascinating examination of the contours of executive and legislative authority.  The Affordable Care Act recently survived a challenge to its overall constitutionality.  Remember, “it’s a tax, not a penalty.”  Now, the Court is asked to determine whether one specific provision of the law that requires businesses to provide contraceptives and abortifacients to employees is constitutional.

For non-law and –policy wonks—the vast majority of Americans—this issue goes far beyond the contours.  This is an issue that strikes at the very heart of what it means to live in a free, democratic society.  In a free society, such as ours, private citizens are permitted to create businesses in order to generate a profit.  This is one of the fundamental pillars of capitalism; private business generates private wealth, which enhances the general welfare of all.  Generally speaking, the government is supposed to keep its nose out of the business’ business, other than to establish rules that guard against foul play and criminal mischief.  Notice, however, that such rules are, almost without exception, prohibitive; they say what businesses cannot or must not do.  “Don’t lie.  Don’t cheat.  Don’t steal.”

In stark contrast, the ACA’s contraceptive mandate attempts to compel private businesses to do something, even if that something is abhorrent to the business owner.  The government seeks to dictate how private businesses conduct themselves and how they spend their revenues.  For the majority of American businesses, this is perhaps a non-issue.  After all, many likely already provide contraceptives to employees under their insurance plans.  But for faith-based businesses or businesses owned by people of faith, this is a watershed moment.  There is a very real possibility that a devout business owner may be forced, by law, to provide abortion-inducing drugs that violate the tenets of his or her faith.

Supporters of the contraceptive mandate argue that this is not a religious liberty issue.  They argue that the government already exempts churches and religious ministries from the mandate.  They believe that private businesses, on the other hand, have lesser or no First Amendment rights when it comes to this matter.  They believe the government has the obligation and the right to ensure that all women have access to contraceptives, regardless of religious teachings.  This obligation, they argue, trumps any individual objections, faith-based or otherwise.  Individual liberty must yield to the desires of the many.  That is the epitome of liberty without wisdom or virtue.

If this social welfare argument is ultimately successful, watch out.  The consequences will be dire.  Religious liberty and autonomy in America will be ushered, nay banished, to the back of the bus.  A government that has the right to tell a business owner that it must do something that violates the business owner’s faith is only a few short steps removed from a government that is able to tell a home owner what kind of vehicle he or she must drive, which television shows to watch, or whether their children are permitted to homeschool.  Indeed, is it really so far-fetched to imagine a future in which a social welfare-motivated government argues the right to dictate which church we should attend?  Americans of all faith groups should pay very close attention to what happens next.  Our ignorance and apathy will be to our peril.


Michael Berry is an attorney for Liberty Institute, a nationwide religious liberty law firm dedicated to restoring religious liberty in America. Michael joined Liberty Institute in 2013 after seven years serving as a JAG officer in the United States Marine Corps. He is a 1999 graduate of Texas A&M University and a 2005 graduate of The Ohio State University School of Law.

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