The National Interest in Fertility

Hot Air looks at the "fertility panic," which is general in places falling now far below replacement levels.

We talked about this issue recently, thanks to Tex, so I just want to point out a small Obamacare consequence. Health and Human Services has made a move toward mandating free birth control as a part insurance plans. This is supposed to be Constitutional (pending 1st Amendment challenges) on the grounds that it is in the national interest to ensure that women have "access" to this technology, which can only mean that it must be provided to them for free.

So what if a future HHS should decide that it is in the national interest that we should stop using contraception as much as we do? What if they instead altered the picture with a regulation that said that "no one shall" offer any birth control coverage as part of any insurance plan?

The point is that a gate that swings one way can also swing the other. Once anything becomes a matter of public policy, it's no longer a matter that can lay a claim to the privacy of decisions made in the intimate space. But it is just that claim -- that matters of contraception are private, intimate decisions -- that underlies Griswold v. Connecticut.


Eric Blair said...

I think Margaret Atwood wrote a novel about that.

Assistant Village Idiot said...

Yes, Eric - people have an alarming tendency to lean out over the gunnels on the side the boat is already taking in water. If the pendulum ever does swing the other way, there will be those who fear it will never gain momentum even as it reaches its peak.

douglas said...

If you're arguing about the contraception mandate with someone who thinks it's great, bring up that it opens the door to regulation of one's body. Then remind them that they oppose that -in concept- with abortion. It might actually get them to see things a little differently.

Cass said...

It seems to me that if we're arguing that refusing to cover birth control does not amount to preventing access to birth control, we can't very well turn around and say this would be a problem if the government did an about face.

No one is coerced into not using birth control when the government refused to subsidize it. Neither has the government intruded upon the [still] private decision of whether to use it or not.

I don't think we can say it has without endorsing arguments we've previously held to be nonsensical.

Dad29 said...

The only non-sensical argument is the one from Malthus.

Texan99 said...

I agree with Grim that arguing a "national interest" in giving women access to birth control is a slippery and dangerous argument. National interest can just as easily to be used excuse policies that make birth control harder to get.

It's not a question of forcing women to use birth control, or forcing them not to use birth control. It's the idea that the government should take a hand in deciding whether we should have more or less of birth control handy in our society.

But until the progressives fall into the silly error of relying on the "national interest," they're only saying that individuals should have the right to make up their minds whether to use birth control, and the government should butt out. You can make arguments that one choice or the other about birth control is for or against the national interest, and I'll find some of them more persuasive than others, but I still won't like seeing the individual choice overridden by any faction's views on the right "national interest." The heavy burden, in a limited-government constitutional system, ought to be on anyone who wants to usurp individual rights in favor of the national interest.

Now, the national interest in preserving as much autonomy and liberty for individuals as is consistent with public order is one I find pretty compelling. It would support the striking down of laws prohibiting birth control. It would not support forcing anyone to pay for anyone else's birth control, on religious or an y other grounds.

Elise said...

I think birth control is a weak example here for reasons Cass has made clear. It seems to me the better argument would be an example of forcing employers to pay for something that violates the conscience of someone on the Left:

Require employer-provided insurance to cover treatment to “cure” people of homosexuality, including psychiatric, drug, and religion-based approaches.

It can be puzzling that those on the Left cannot see how something like this can turn and bite them. I think the reason for that lies in their name for themselves: Progressive. They believe that the country will never go "back", that social issue victories and "rights", once won, will never be lost, that history is on their side.

I have no explanation for their certainty about that, unless it is some combination of breath-taking naivety and even more breath-taking hubris.

Grim said...

That was the system we had, Tex, until the day before yesterday (so to speak). It seemed to enjoy widespread public support, but was recently successfully argued against by the "War on Women" commercials demonizing people for supporting it. The new idea is that there is something about a just society that requires government taking a hand to make sure that birth control is not just "not illegal," but "available," meaning free.

Now that's an argument on significantly different grounds from privacy. It's not that this is an intimate matter that is no one's business, anymore; it's that it's a public matter on which we should set policies. And if that's the kind of matter it is, then you can't simultaneously dictate that only one set of policy is acceptable: rather, the issue becomes part of the national debate.

Now, I don't think that the analogy supports a more restrictive policy than HHS telling insurers they can't cover any form of contraception. A law against it would still seem to be unconstitutional... well, maybe a little less so, though. Because Griswold's basis is no longer valid. We've changed our minds about this; it's not a private matter anymore, but one we have assumed into the national debate.

So maybe Griswold has to be revisited. And it could be that your view will win the day. Or it could be that some other view will do so. It could be (I argue purely hypothetically) that, in the midst of a "panic," the electorate and even the Supreme Court finds a public interest in ensuring enough children to make sure the organs of public welfare have enough taxpayers coming online to keep them greased. In that case, well, you could go farther in regulating fertility than the HHS mandate.

Not that I wish to do so. Just that I'm surprised to find us here. It's rather like your post about NARAL cutting off the limb it was sitting on: here they've taken an axe to the whole tree. Griswold underlies Roe, and thus the whole structure is built on this principle of privacy. By moving to use HHS in this way, it seems that they've undercut it.

Grim said...

Elise & Cass:

I'm not sure I understand the point you are making. If HHS should reverse itself on birth control, I agree that conservatives shouldn't be particularly bothered -- whether it eliminates the mandate (which it ought), or reverses it (which at least avoids the problem of making someone else pay for a third party's goods).

What I wonder about is the way in which they've moved the debate in a way that undermines the key principle that was underlying their position. It seems that it has exposed the root of their position to a whole new line of attack, and that they will have to defend themselves on some other grounds than privacy. (How ironic if they follow Tex's line! But her argument seems plausible.)

Cass said...

Because Griswold's basis is no longer valid. We've changed our minds about this; it's not a private matter anymore, but one we have assumed into the national debate.

Grim, I think you're distorting Griswold. What Griswold did was prevent STATES from criminalizing the private decision of a married couple to use birth control.

To undermine Griswold, they would have to go back to the pre-Griswold understanding that the States can criminalize the use of birth control between married people. But that's not what we're talking about here at all. If the federal govt refuses to subsidize birth control, that is NO the same as the state preventing couples from obtaining it. And it does NOT forbid state laws that criminalize the use of birth control.

I get your point (what the fedgov giveth, it can taketh awayeth), but I don't agree that your example has anything to do with Griswold.

Grim said...

To completely reverse it, states would have to be able to ban birth control. To undermine it merely requires that the reasoning on which it stands become liable to new challenges.

It seems to me that there is a new challenge here. We were thinking of contraception as a purely private matter. Now, however, Woman X's access to contraception is so important that Someone Else has to provide it to her, by law, with the government's sanctions behind that law to punish Someone Else if they don't provide it.

Well, that being the case, Woman X is no longer making a private decision at all. Someone Else is an interested party. And Someone Else can appeal to the government to change the law.

Maybe that's limited to "Stop making me pay for it at gunpoint," because that is the point at which Someone Else is no longer interested. That's one solution -- a return to status quo ante, at which point the decision is private again.

Alternatively, though, let's say we don't do that. Since under current law contraception is also Someone Else's concern, they could make the argument that -- actually -- it's really in our interest that there be more babies. Someone Else can say to the government, "You should make contraception harder to get, not easier to get -- that's what's really in the national interest of social justice, because it will mean that all of our social justice programs will remain funded over time."

Now, that line of thought has come up before, in places like China (where it was about limiting fertility) and Mongolia (where it was about rewarding it); and it seems to be making inroads, according to the article linked under "panic." I'm not advocating for the position, to be sure. I'm just saying that I think the root has been exposed by bringing this kind of decision out of the private space, and making it a matter for public policy.

Cass said...

We were thinking of contraception as a purely private matter.

Who was? Pre-Griswold, the state of Connecticut certainly wasn't! :p

It wasn't private before or during the ObamaCare debates either.

You are conflating the private decision of an individual to use b/c (completely irrelevant to this discussion,by the way, unless you cede to govt. the power to prevent couples from getting it) with the public policy issues surrounding birth control that have existed for at least the last century.

Birth control was illegal in most of the country for a very long time (if that ain't "publicizing" what ought to be a private decision, I don't know what is!). And federal funds as well as state funds have been spent on birth control and b/c education for decades, which places birth control firmly in the realm of public policy issues. This isn't a root that wasn't exposed before - it has been exposed for ages.

The legality and availability and cost of contraception have been public policy items for decades. There's no change here, Grim. All that has changed is that government may decide to subsidize it or not. That doesn't change the private character of the decision, which only truly became an officially recognized private matter ante Griswold.

RonF said...

I have often argued the concept of "access" with those on the left. To their mind, "access" means "If you can't or don't care to afford something, the government will pay for it". To my mind, "access" means "the government will not ban you from buying it and will not grant anyone else (except the parents of a minor) the power to ban you from buying it"

Grim said...


I'm going to let this one go because I think we may just be talking past each other here. I see the point you're trying to defend, I just don't think it holds: the power to tax is the power to destroy, and the power to say 'thou shalt' is not just the power to say 'thou shalt not,' but the power to say, 'if thou shalt, it'll cost you a whole lot extra.' Which is the power to tax.

But I'm not trying to say that you're wrong, within the confines of the point you're defending.