Category Archives: rights

“Free” Contraceptives and Abortions

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As the Supreme Court takes up the Patient Protection and Affordable Care Act this week, I want to talk a bit about a small aspect of that Act that’s also been in the news lately—the mandate to provide free birth control and pregnancy “correction” services.  I’ll have some ramblings on the PPACA itself in a nearby post.

The original Health and Human Services mandate was that employers would be required to provide contraception and abortion health insurance coverage at no additional cost to their employees.  After the hue and cry over this assault on religious freedom—too many faith-based employers exist—President Obama “compromised” by putting the mandate off onto these employers’ insurance companies.  Of course this ignores all those faith-based employers that self-insure, but enough is enough—the Progressives have accommodated, now it’s on the rest of us to compromise by sitting down and shutting up.

The Wall Street Journal, in a recent editorial, talked about the economic aspect of this adjusted mandate, focusing on the still free part of the services.  The WSJ asked

Insurers are banned from charging higher premiums for extra benefits, so out of what mists will the necessary dollars materialize?

Health and Human Services claims that

Actuaries and experts have found that coverage of contraceptives is at least cost neutral, and may save money, when taking into account all costs and benefits for the issuer.

These must be the same actuaries and experts that assured Congressman Henry Waxman (D, CA) that PPACA itself wouldn’t be raising the cost of health insurance, so how dare AT&T, et al., announce just such cost increases in their SEC filings?

On the other hand, goes the argument, faith-based employers can simply hire insurers to run benefits and then directly pay their workers’ bills.  In this way, religious organizations will pay for the contraception and abortion coverage with only a token middle man.   But this is just a cynical sophistry.  Whether paying directly or through a “token middle man,” these organizations are still being forced to pay for a violation of their teachings and their conscience.

And this brings me to a larger problem with this mandate, the reduction on individual freedom that it represents.  Ann Patchett, in another op-ed in The Wall Street Journal, argues with a straight face that

If you are a Catholic, as I am, and birth control is covered in the insurance plan of the Catholic institution that employs you, you still don’t have to use it.

This is certainly true.  But she ignores the critical aspect of this: “you,” woman or man, must still pay for it.  Even though it violates your conscience, your religious teaching, to do so.

She goes on, with a justification all too common among Progressives:

If you are galled by the idea of paying for the birth control of people you do not know, people who might be using it to have wanton sex, stop and make a list of all the other troubling ways your tax dollars are spent. Contraception will probably not make the top 10.

Thus, because others have done wrong, or in this case because there are already a lot of misuses of our tax dollars, it’s OK to commit this wrong.  There’s an interesting logic.  Furthermore, this bit of argument carefully elides the loss of choice: no longer can a woman or a man choose to buy, or not to buy, contraception or abortion.  Now we all must buy them.

Finally, the argument also carefully elides a larger loss of freedom: the freedom of religion and conscience.  Now men and women of faith must violate their religious teachings, their conscience—not of their own free will (and the Progressives have made much of their non sequitor that vast hordes of Catholic women use contraception and even (gasp!) get abortions), but from government fiat.  Government supplants conscience, Government supplants God.

One for the Good Guys

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“The Clean Water Act prohibits the discharge of any pollutant by ‘any person,’ without a permit, into ‘navigable waters’,” noted the Supreme Court in the summary of its just concluded ruling in Sackett v. Environmental Protection Agency.  It went on in that summary:

The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act.

A little background at this point: the case got to the Supreme Court because Mike and Chantell Sackett began construction on their dream home in 2007, on a lot completely surrounded by a developed residential neighborhood, complete with lots of already existing sewer lines.

The EPA decided that this completely residentially surrounded lot had wetlands on it connected to navigable waters, and it issued a compliance order to desist from construction and to restore the wetlands (violation of the order carried potential penalties of $75,000 per day—for those keeping score at home, that works out to an accrued penalty of $130 million).  Rather than rolling over and giving up on their dream, the Sacketts sought relief in Federal District Court for the District of Idaho (their property was in Bonner County, ID), arguing among other things an illegal taking under the Constitution’s 5th Amendment.  The Court dismissed and the Ninth Appellate (of course) sided with the EPA and upheld the District Court.  After all, the Ninth held, the CWA has no mechanism for a private citizen to object to the EPA’s diktat, and so there was no standing to sue.  The Sacketts appealed to the Supremes.

The Supreme Court’s unanimous ruling was short and sweet in its essence:

The Sacketts may bring a civil action under the APA to challenge the issuance of the EPA’s order.

Justice Antonin Scalia, writing for the Court, also had this to say about the government’s arrogance, particularly its claim that were EPA compliance orders subject to judicial review, the EPA’s ability to enforce clean water protections would be interfered with [emphasis mine]:

The Government warns that the EPA is less likely to use the orders if they are subject to judicial review.  That may be true—but it will be true for all agency actions subjected to judicial review.  The APA’s [Administrative Procedure Act, which provides for judicial review of agency rulings and orders] presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.  And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.

Justice Samuel Alito, in a concurring opinion, added this about the government’s arrogance [emphasis added]:

The position taken in this case by the Federal Govern­ment—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees. …

Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. … In a nation that values due process, not to men­tion private property, such treatment is unthinkable.

Although this particular EPA abuse began under another administration, it remains a glaring example of the unbridled self-importance of the agency and of its routine reach for additional power.

It’s also clear example of the necessity of abolishing this agency: it’s too far, and for too long, out of control, and it is irredeemable.

The Administration And Free Speech

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The First Amendment, as Judge Andrew Napolitano points out,

prohibits the government from infringing upon the freedom of speech, the freedom of association and the freedom to petition the government for a redress of grievances.

But what’s the point if government declines to listen, and/or decides to specify where a citizen might be allowed (which includes a decision to not allow) to speak, even if not speaking to his government, decides to specify where groups of citizens will be permitted (which includes a decision to not permit) to congregate?

We have though, this brand new law, the Federal Restricted Buildings and Grounds Improvement Act of 2011.  This law, as Judge Napolitano says,

permits Secret Service agents to designate any place they wish as a place where free speech, association and petition of the government are prohibited.

Thus, federal agents whose work is to protect public officials and their friends may prohibit the speech and the gatherings of folks who disagree with those officials or permit the speech and the gatherings of those who would praise them, even though the First Amendment condemns content-based speech discrimination by the government.

Our government has forgotten a critical item, and Judge Napolitano has missed it, also.  This item is far more than a “mere” violation of our Constitution.  As out Declaration of Independence acknowledges,

…Governments are instituted among Men, deriving their just powers from the consent of the governed….

Government works for us.  It has no capacity for declining to listen to us (much less to not hear us), or to dictate to us, its employers, where the employee might choose to listen—the conference room is ours, not government’s.  We will gather in the conference room of our choice, gather whom we will in that room—including our subordinate government—and say what we will to that government.  And that government will heed us.

After all, our Declaration of Independence also acknowledges that

…whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government….

and

…when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Our present administration has chosen to ignore all of this.  We have an election coming up, an excellent opportunity to throw off this administration and to institute a new one.

The Regulation of America

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We’re becoming a severely regulated country, and it’s coming on the heels of President Obama’s promise to

find rules that put an unnecessary burden on businesses [and] fix them

which he made in his 2011 State of the Union address and which he committed to writing in his Executive Order 13563 the week prior, which requires all executive branch agencies to “identify and consider regulatory approaches that reduce burdens.”

This also is symptomatic of what’s wrong with our present administration.

This exchange between Congressman Corey Gardner (R, CO)  and EPA Assistant Administrator Mathy Stanislaus at a House Environment and the Economy Subcommittee hearing demonstrates just how seriously Obama and his agencies take his promises:

Corey: Is it standard procedure for an economic analysis to ignore the impact on jobs?

Stanislaus: Well, we didn’t do a direct analysis, again we sought—

Corey: So you did not do a direct economic analysis?

Stanislaus: Well we did do an economic analysis on [various areas]

Corey: But not a cost on jobs?

Stanislaus: Not directly.

The entire five minutes of the video consists of variations of this exchange wherein Corey kept trying to pin down Stanislaus on whether the EPA satisfies its statutory requirement to do a jobs impact analysis as part of its rules economic analysis and Stanislaus’ constant evasion and finally admission that the EPA does not.  The rules, as rules, are more important than working Americans, more important than their effects on our country.

As the Heritage Foundation points out, since January 2009, 106 new “major” regulations have been enacted, costing us $46 billion, plus almost $11 billion more in implementation costs: Obama has become the biggest regulator in American history.  Dodd-Frank has generated the most regulations, and with the CFPB, these are the least accountable.  The EPA, though, is enacting the most expensive, with just four rules costing us $4 billion per year.  And this is before the closure of gasoline refineries in the Northeast—which will force New York, for instance, to import expensive foreign gasoline to make up the shortfall—and electric power generating plants throughout the already economic and employment challenged rust belt—which will drive up power costs for those hard-pressed businesses and citizens.

On the financial side beyond Dodd-Frank, the government is reaching directly inside our businesses to dictate to them what they can and cannot do with their own business assets.  Illustrative of this is the Federal Reserve Bank’s decision to not allow Citibank to return capital to its owners through increased dividends and stock buy-backs.  The Fed said Citi couldn’t handle it.  The Fed said that, not the bank’s owners.  The bank’s owners said otherwise but were casually overruled.

There’s a rather naked conflict of interest here for a government as prone to expand our national debt as this one is.  As Alex Pollock, resident fellow at the American Enterprise Institute, and past president and CEO of the Federal Home Loan Bank of Chicago, points out:

…governments promote loans to governments. They have an obvious self-interest in promoting loans to themselves and to other governments they wish to help or influence.  Banks are extremely vulnerable to pressure from governments—the more regulated they are, the more vulnerable.  Employees of government bureaucracies have an incentive to encourage loans to their political employers—an inherent conflict of interest.

But never mind about petty conflicts of interest.  It’s this way because the Progressives don’t believe we’re able to take care of our own affairs.  Instead, we must be told what to do, have our courses of action limited—for our own good—by our Betters.  And for their political gain.

2nd Amendment and the Fifth Circuit

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The Wall Street Journal‘s Law Blog has a description of an egregious gun rights case.  It seems that, when Errol Houston was arrested in New Orleans in 2009 on drug and firearm charges, the police seized a properly registered gun that he had.  So far, so good—when the police arrest someone, they’re allowed to disarm him, too.  However, when the charges were dropped, the city refused to return his weapon to him.  He sued for the return, and amazingly, the district court found for the city.  Even more amazingly, the Fifth Circuit upheld the ruling, with this…logic…written by Judge Rhesa Hawkins Barksdale:

Just as some regulation of speech–e.g., of obscenity and defamation–is “outside the reach” of the First Amendment, so, too, is some regulation of firearms outside the reach of the Second.  The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense.

Houston has not alleged defendants prevented his “retaining or acquiring other firearms.”  Therefore, he has not stated a violation of his Second Amendment right to keep and bear arms.

Judge Jennifer Walker Elrod dissented.  In addition to pointing out the degree of legality of the majority opinion, violating as it does the Supreme Court’s prior rulings in similar cases (vis., District of Columbia v. Heller and McDonald v. City of Chicago), she also correctly explains the nature and meaning of the 2nd Amendment:

In the context of other enumerated constitutional rights, an equivalent per se exception for particular exercises of the right at stake (so long as other exercises of that right are permitted) would be intolerable.  Consider, for example, a court holding that the Free Speech Clause affords no protection against the government preventing the publication of a particular editorial in the New York Times because there are plenty of other newspapers that might publish the piece.  Or consider a court holding that the Fourth Amendment is inapplicable to the unreasonable seizure of a specific automobile so long as the government does not prevent the owner from borrowing, renting, or purchasing a replacement vehicle.  These examples should suffice to show the absurdity of courts recognizing categorical exceptions for each particular exercise of those rights.  In carving out such an exception from the Second Amendment, today’s majority impermissibly treats the Amendment as a “second-class right.”

Judge Elrod is right that the accessibility of alternatives is irrelevant—those alternatives are not the item itself, and the item itself remains the legitimate property of the owner.

Both the majority and Judge Elrod miss a larger point, though: the “right of the people to keep and bear Arms” is, indeed, a property right, but it is a different and more fundamental kind that that alluded by Judge Barksdale and accepted by Judge Elrod.  This property is one flowing from the endowment imbued in us by our Creator, a property of our being.  As such, Judge Elrod is right, but she doesn’t go far enough.  It is the regulation of our endowed rights that is the exception, not the possession of this or that particular item in a realization of one or more of those rights.