Contraception and Healthcare Rights


Contraception does not respond to an authentic healthcare need, and the state acts untruthfully and beyond its legitimate authority when it mandates contraception coverage.

In the drama of our recent debt crisis, a key announcement from the Department of Health and Human Services received inadequate attention: from now on, contraceptives (including the morning-after pill) and sterilization are to be considered “preventative” medicine and will be entirely covered, along with other forms of preventative medicine, by insurance policies, without co-pay.

Many religious leaders and academics worried that the new healthcare regulations would inadequately address the conscience concerns of religiously affiliated healthcare institutions. The worries about conscience were well-founded. While the new regulations provide exemptions for religious healthcare institutions, those exemptions are exceedingly narrowly drawn, and only apply to those institutions that primarily employ and serve those who share the religious tenets of the institution. This requirement will, it seems, effectively rule out most religious healthcare facilities, which, after all, serve all comers, and not just co-religionists.

So, how should religiously affiliated institutions respond? They should, no doubt, continue to argue that the regulations violate freedom of conscience and attempt to expand relevant exemptions. But they must not overlook a more fundamental problem. By treating the provision of contraceptives as a necessary part of the political common good, these regulations create a political entitlement to contraceptives, a right that has never been part of our collective self-understanding as a nation.

The ground for claiming a political right to contraceptives and sterilization comes out of a more general idea underlying the recent attempt at reforming healthcare, which is this: it is reasonable to make affordable healthcare, including preventative care, a political entitlement for people who are unable to obtain it themselves. That idea strikes me as fundamentally correct. We can grasp that healthcare, broadly defined as access to medical interventions, drugs, and technologies, is essential to the preservation of life and bodily integrity, and proper organ functioning. Death, not far from those who are seriously diseased or disabled, brings an end to human existence and well-being—the focal points of health. And to be healthy enables one not only to thrive physically, but also to pursue all kinds of other opportunities. So health, and thus healthcare, is centrally important to human life.

If one recognizes the importance of healthcare for the sake of his own health, then he should also see its importance for the lives of all other human beings. Thus, our ties to other human beings, whether by kinship, nationality, or even physical proximity (think of “Good Samaritan” stories), put certain obligations on us to do what we can whenever these beings suffer urgent health-related needs. The first obligation of parents, for instance, is to care for their children’s health; and it is the obligation of neighbors and passersby everywhere to do what they can for those in urgent need.

But often, little can be done. In a world of expensive technologies that require special skill for their use, we can best meet our already existing obligations to other human beings through socially cooperative acts that distribute benefits, burdens, and obligations fairly and effectively. In some cases, the most efficient way to distribute these benefits, burdens, and obligations may be state involvement. If this is true, then in those cases, the state must take action.

Efficiency requires a concern for prevention: if small steps like vaccinations can stop future epidemics, then we should take those small steps. And if only the state’s help allows us to do this effectively, then the state should help. So, based on their efficiency, vaccination programs backed by state requirements could be preferable to programs asking only for voluntary compliance.

Now, wherever we judge that we have obligations to provide care and that the state’s assistance best helps us meet those obligations, then in some way, we have identified a right to healthcare – a human need of such gravity that others are obligated to come to provide aid. We have also begun to translate that right into a political right, an entitlement.

Yet we should be cautious in deciding to make a healthcare need into a healthcare right. To start this process of translation surely requires the following conditions:

  • The identified need must be a genuine healthcare need.
  • It must be a need of great gravity and urgency.
  • It must be a need that requires the state’s participation in serving it.

Though these three requirements may not be the only preconditions for a healthcare need to become a healthcare right, if the state fails to meet any one of them, but asserts a healthcare right and sets up structures to serve that right, then the state either acts contrary to truth or acts outside of its authority, and thus unjustly.

The state would act contrary to truth if it smuggled into the general right to healthcare some non-health related benefits. In the case of contraception and sterilization, one can convincingly argue, first, that neither addresses an illness or a malfunctioning organ, and second, that the ability to become pregnant is in fact a sign of good health. So what disease is truly being prevented with these mandatory “preventative” care procedures?

The state would act outside its authority if the goods it sought were not goods that it is part of the state’s mandate to serve, or if the state’s involvement were not more efficient than the activity of citizens and their more local efforts at cooperation. The state simply has no mandate to be involved directly in the provision of every possible good to its citizens. In some cases, the good is, in some ways at least, in principle beyond the scope of the state: right religious worship, for example. In other cases, the state would be treating its citizens as children, doing for them what they were both obliged and able to do for themselves.

The HHS decision treats as a health care problem the social and moral problem of unwanted and unplanned pregnancy. And this is both a social and moral problem, it should be stressed: out of wedlock pregnancy is a widespread phenomenon, and is often devastating for the children so conceived, born, and raised. It is an injustice to them that their parents should be so reckless in their sexual choices. But injustice is not illness, and treating it as if it were is both untruthful, and dangerous, by addressing a moral problem as if it were subject to a technical fix.

Of course, the state is not simply looking to the serious social suffering that comes about from sexual irresponsibility; it is also looking to the benefits of free sexual activity without the threat of children, benefits widely desired by men and women throughout the West. Widespread availability, and now cost-free provision of contraceptives brings us one large step closer to a widely held goal of complete sexual liberation for men and women, a goal the achievement of which will be seen by many as a tremendous personal and social good.

Does achieving such a goal really fall under the authority and obligation of the state? Is the state, which exists to allow all of its citizens to pursue human well-being by assisting citizens where they are incapable of assisting themselves – by coordinating social action, by defending the nation against internal and external marauders, and by providing welfare benefits to those who would otherwise grapple with serious deficiencies to their well-being – is that state obligated to bring about the sexual revolution by requiring that all citizens, even those who would reject the sexual revolution as directly contrary to their understanding of human good, join together to treat that revolution as a funded political right?

That we even need to ask this question shows just how radical and far-reaching these new requirements are.

Many believe that when the pill was created in the twentieth century, its existence signaled that we were radically rethinking the goals of medicine; we turned away from concern for bodily health and towards something more focused on patient desires. These new requirements from the HHS threaten to usher in a similar change to our self-understanding as a nation.

Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a senior fellow of the Witherspoon Institute. His book Biomedical Research and Beyond: Expanding the Ethics of Inquiry (Routledge, 2008) has just been released in paperback. Tollefsen sits on the editorial board of Public Discourse.


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