Yesterday’s narrow Hobby Lobby decision shows why the culture war isn’t over – it’s just getting started. The reality is that in the absence of the ability to compel employers to pay for things over their religious objections, and at a time when covering 16 forms of birth control out of 20 is culturally insufficient, the Obama administration will be more than happy to turn to the traditional method of the left: skipping the middle man of the employer and just handing people other people’s money.
So because some people cannot be compelled to pay for their employee’s IUDs, Plan B, and Ella, everyone will be compelled to pay for it. It renders the whole argument over deeply held religious beliefs a cute sideshow: if employers can’t be forced to pay for it, all taxpayers will. Congratulations on retaining your personal image of faithfulness while sticking the rest of us with the bill.
That’s one of the reasons why support for making birth control available over the counter is rising on the right and the left. There are a number of objections to this, but I find them to largely amount to unconvincing paternalism. The chief argument advanced is that standard oral contraceptives mess with hormones and have all sorts of side effects. This is, of course, true! But: dangerous side effects are rampant within all sorts of other over the counter drugs. Women can think for themselves and make decisions with their doctor and pharmacist about what drugs they want to take – and the evidence shows they are good at self-screening. In fact, it would actually increase the ability to mitigate and respond to unanticipated side effects, since changing tracks will no longer require a doctor’s visit and getting a new prescription. Assuming that women won’t or can’t take responsibility for themselves to consult with a doctor unless required to by arbitrary government policy is absurd.
It’s obvious why libertarians like the idea of OTC birth control. Conservatives should like it because it removes the responsibility for redistributive payment from themselves while demonstrating that yes, they really aren’t about banning things or preventing access to birth control. And liberals should like it because it will lower the drop-out rate, which is currently largely driven by the requirement to re-up the prescription as much as every few months. The American College of OB-GYNs supports it, Louisiana Gov. Bobby Jindal and Colorado Rep. Cory Gardner support it, most of the world already has it, and making it official policy would lower prices, lower health care costs, and make consumers more cost conscious. All of these are good things.
Now, some liberals won’t be satisfied by this OTC solution in the absence of the overall contraception mandate, because it would only address the challenge with oral contraceptives, not IUDs. In her dissent, Justice Ginsberg pointed out the high cost of IUDs as reason why employers need to cover the cost. But I suspect that making a policy change which addresses concerns about contraception’s availability for the vast majority of people will really take the energy out of that push, just as an honest case against Hobby Lobby (that they just didn’t want to pay for things that can prevent the implantation of a living embryo – two morning after pills and two implants – versus preventing the creation of that embryo in the first place) would’ve aroused a far less aggressive opposition to their stance. I think those on the left who prioritize this issue know this, too.
Social conservatives who can see the writing on the wall with the over the counter availability of Plan B – a supercharged version of the low-dose contraceptive hormone, now available via vending machines on college campuses, and which sexually active teenagers (which is to say: teenagers) are already using as an abortifacient substitute for the daily pill – should know that they’re not going to get this horse back in the barn. The question becomes whether you will have to pay for other people’s choices in violation of your religious beliefs. Here, I think the OTC solution is not just viable, but leads people to the logical conclusion they ought to have about birth control policy: your body, your choice, your responsibility. People don’t naturally assume that over the counter drugs should be available for free: they think they should be able to buy them.
I’d encourage social conservatives who oppose this idea to rethink their opposition. Otherwise, birth control and abortifacients are simply going to become the name we give to the things we choose to buy together.
[Originally published at The Federalist]