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Maarten van Swaay / July 8, 2014

Puzzling Reactions to the Hobby Lobby Opinion

Several things are puzzling about the ‘news’ one can find after release of the SCOTUS opinion on Hobby Lobby: At issue was not contraception – which prevents pregnancy – but what one might call morning-after choices, which ‘undo’ pregnancy. Hobby Lobby has long offered its employees insurance – more about that later – that includes coverage of contraceptives, but it did not accept the imposition that it must also cover the second category, which it classifies as abortion. Nor has Hobby Lobby ever expressed concern about the use of contraceptives in any form by their employees.

Loud declarations in the news media that the opinion has deprived women of contraceptive choices are much at odds with the case that Hobby Lobby brought. The news media were not alone in this mis-representation: even Mrs. Clinton, who quite probably knows the difference, and certainly should know, joined the ‘return to stone age’ and ‘women’s health’ choruses, to widespread acceptance by most news media.

More fundamentally, one should ask whether the costs of contraception can even be part of any insurance structure. The purpose of insurance is to spread risk, not to delegate cost. With rare exception – such as forcible rape – pregnancy cannot be called a risk: it is a – potential – consequence of deliberate choice. That choice includes both the option of abstinence and various options of contraception, and of course procreation.

Abstinence carries no financial cost, but today it is widely seen as a ‘lifestyle cost’ that women are no longer expected to accept. The reasoning is that women bear the burden of consequences, and are thereby selectively exposed to that burden. Hence, so the reasoning goes, government should level that selective imposition. But this country has paternity laws, which hold males responsible for the consequences of impregnation. If women must be sheltered from the cost of avoiding or undoing pregnancy, could not men claim a right to an option to be sheltered from the cost of paternity?

What about the cost of contraception? It would be a far stretch to classify those costs as ‘risky’. One can choose to avoid them entirely, as has been done – more or less successfully – for millennia. For those who choose to avoid pregnancy by contraceptive means, the (modest) cost of that choice can readily be estimated, and women can insist that it be shared or shouldered by their partner. An arrangement that covers such costs is not insurance: it should be called subscription. No insurance company can or should offer a policy that covers subscription services without building their cost into the premium. Even if that cost were covered by subsidy, the subsidy would have to paid in some way.

In all cases, consumers will effectively pay for the predictable components of their insurance, whether as premium, or as a tax. But in those forms, the actual cost is no longer identifiable, and consumers may well be tempted to view what they receive as ‘free’.

In summary, the cost of contraceptives not only should, but unavoidably must always be borne by the consumer, for two reasons. The use of contraceptives is a free choice, and its cost cannot be avoided by camouflage. On the contrary, the actual cost may well increase when it is camouflaged.

This increase resulting from camouflage reaches far more broadly than merely contraceptives, and quite possibly is a significant factor in the rapid rise of costs for, e.g., college education and health care. Claims that such tricks make those, and other costs, ‘more affordable’ should be recognized as misleading, if not subversive.

The news media strongly defend their Constitutional right to Freedom of the Press. That freedom is well justified by the expectation that a free press can serve to inform the public. I submit that the failure of the press to place the Hobby Lobby opinion in proper perspective amounts to a failure to abide by the obligation to inform. The pronouncements of Mrs. Clinton and others amount to an attempt to mislead the public. Worse, they imply an expectation that the public – and the Press – will not call her to account.

Professor Maarten van Swaay retired from Kansas State University in 1995. He can be reached at [email protected]

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