The Mistaken Assumption Behind Employers’ “Right” to Not Cover Contraception

Back in 2011, as part of its Indecision 2012 election coverage, Jon Stewart helped Herman Cain with some “pronoun issues” the Republican hopeful seemed to be experiencing as he voiced support for the banning of a mosque in Murfreesboro, Tennessee, a position he justified by claiming that Muslims were “using the church part of our First Amendment to infuse their mosque in that community, and the people in the community do not like it; they disagree with it.”

Stewart responded by helpfully replacing Cain’s pronouns with the proper ones. “You think our First Amendment protects us against their mosque, when in reality, the First Amendment protects their mosque from us.”

A similar pronoun confusion now dogs the debate over employers’ First Amendment rights to the free exercise of religion and the new insurance mandates under the Affordable Care Act, which include birth control. The argument that seems to be winning in court is that employers who oppose the use of birth control for religious reasons should not have to provide it to their workers.

Only in a world in which labor has been alienated from production, however, can such an argument make sense, and we don’t have to be Marxists to see it. Instead, we can rely on John Locke, the “Father of Classical Liberalism” (ie. American Conservatism), or The Little Red Hen, or even just common sense.

When labor is alienated from production, the compensation it receives for services rendered are “given” by the owners of the enterprise, with the implication that it “belongs” to them (the owners), and they are thus free to dispense of what is theirs as they see fit. And if it belongs to them, then it is in some sense an extension of them, and thus whatever appears in the compensation packages of workers, such as birth control, affects them. 

Framed in this way, the argument makes sense. I mean, we’d understand a Quaker grandmother’s reluctance to help her grandson buy an assault rifle, regardless of how much he pleaded or how big the occasion (birthday, graduation, etc.). It makes sense because we all agree that the money doesn’t “belong” to the grandson.  

For Locke, however, God gave the world to us in common, and we appropriate a part of it to ourselves for private use through our labor. (We sowed the fields; the harvest belongs to us.) In a similar manner, the Little Red Hen eats the bread. Paternalism enters the picture when those who receive don’t participate in production. Parents give their children food and shelter, for example, although the children don’t earn them through their participation in production (at least not in our society).

Returning to the issue of insurance, if we accept that labor has a claim on production (labor sowed the seeds) then the wages and other forms of compensation it receives aren’t “given” by owners, but rather already belong to it. They are earned, not bestowed. Owners no more “give” compensation to workers than the latter “give” profits to owners. 

And if employees are receiving the portion of production that is already theirs, then their compensation is not an extension of their employers, but rather an extension of themselves. The compensation package, therefore, doesn’t concern the First Amendment rights of employers because it doesn’t belong to them. 

Moreover, if participating in a common economic endeavor gives First Amendment rights over the way in which each of the partners (owners, managers, workers, etc.) employs his or her benefits from it, then employees should likewise be able to veto the compensation packages of their employers as well as the spending decisions of the institutions where they work. After all, workers sowed the seeds and thus the compensation packages/profits are equally an extension of them.

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Mary Barker is a professor of political science at Syracuse University’s campus in MadridSpain as well as at the Universidad Pontificia Comillas. 

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