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Diabolical Diatribes Over Diaphragms

Updated on February 16, 2012

The dearth of knowledge of civic virtue among our public officials is always depressing, but even more so when their ignorance is willful. Case in point: the current debate about the mandatory contraceptive requirement in the policy goulash known as ObamaCare. After this rule was articulated, an outpouring of anger followed due to the high-handed and unconstitutional manner in which the Administration is imposing its value system. Many contend that this is simply the tension between two noble principles: religious liberty of employers on the one hand; the right of female employees to full “health care” access on the other. One value will have to be sacrificed on the altar of the other.

Perhaps this is seen as a reasonable view, but it does not go nearly far enough for the taste of Senators Jeanne Shaheen, Barbara Boxer and Patty Murray. Penning their argument in the op-ed pages of the Wall Street Journal, these three good and compassionate and wise legislators resorted to old faithful: opposition to the contraceptive mandate is rooted in misogyny, dishonesty and stupidity. Right out of the block, the senators smear their opponents:

Now, sadly, there is an aggressive and misleading campaign to deny this benefit to women. It is being waged in the name of religious liberty. But the real forces behind it are the same ones that sought to shut down the federal government last year over funding for women's health care. They are the same forces that just tried to pressure the Susan G. Komen Foundation into cutting off their politics on women's personal health-care decisions.

It is ironic how these senators – all good and compassionate and wise – do not believe women should spend any of their personal treasure on their personal health-care decisions. Yet, privacy is a one-way street to these ladies – just give them your money and mind your own business. I recommend reading their piece, though, as well as an opposing WSJ opinion by Professor John Cochrane. Read together, they illustrate the different hymnals we sing from when viewing policy as an expression of rights.

So what is the genesis of the unfettered and unpaid for right to contraception, a right apparently to be enjoyed by one sex exclusively? If indeed our rights are unalienable and come from God (note to liberals: roll eyes here), they must pre-exist the pill, the diaphragm and RU-486. What then is the right behind the right to subsidized contraception?

Probably the most famous Supreme Court decision relating to contraceptive freedom is Griswold v Connecticut (1962). Writing for the majority, Justice William O. Douglas noted a number of first amendment cases and observed:

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.

So, enumerated rights emanate penumbras which, in turn, are used to claim other rights. Penumbras (penumbrae?) are shadows surrounding sunspots or that shade between light and darkness observable during a solar eclipse. In the legal and political context, this refers to a gray area where progressive judges can make the law without written text to hinder them. In fact, progressives will fight and die for penumbras -- in this case the privacy right -- before they will do so for the rights explicitly spelled out in the Constitution. Hence, the passionate letter from the senatorial trio. There is a glitch in their morality tale, however. Nobody is challenging the contraceptive right laid down in Griswold. The only issue in question is the imposed obligation of the general public to underwrite a woman’s sex life. This imposition should outrage the Murrays and the Boxers of the world, not encourage them.

What happens when the US financially backs banks and automakers? Government people take charge and set the performance benchmarks. You want public money, you play by government rules. The same principle applies here. For my entire lifetime, liberals have exhorted the voters to “keep government out of the bedroom!” Now, the most liberal president of my lifetime – aided and abetted by the senatorial threesome – is taking government right between the sheets. It is naïve to think the feds will not want to regulate the goings on when this subsidy proves costly.

Part of me would like to see ObamaCare fully enacted in all of its invasive wretchedness, just to hear Senator Boxer’s tortured excuses as to why it is not working. Still, personal gratification is not worth the economic devastation that this legislation will cause if it is not repealed. Beyond dollars and cents, it is not worth the liberty lost for women, for men, for all of us.


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