Christine M. Flowers: American right to birth control?

Health-care law is Huxley-esque

ALDOUS HUXLEY once made this chilling observation: "A really efficient totalitarian state would be one in which the all-powerful executive of political bosses and their army of managers control a population of slaves who do not have to be coerced, because they love their servitude."

I thought of this in the days after the election, as the Left and the Right started arguing about what this country will look like in four more years. Those of us who did not vote for Barack Obama fear that the 2.0 version of his administration will permanently move us from a nation of makers to a nation of takers. Case in point: "Life of Julia," a quickly abandoned campaign talking point showing how wonderful life would be under the Great Entitler.

Supporters of the president, flush with victory but still uncomfortable with the idea of a needy Julia, ignored the idea of an "entitlement society" and pretended that all of these taxpayer-funded goodies promised by the Democrats were both necessary and justified. This recalls another of Huxley's credos: "Great is truth, but still greater, from a practical point of view, is silence about the truth."

Now that the election is over and the rhetoric has died down a bit, we are left to deal with a troubling reality: an unwieldy health-care bill that would make Aldous Huxley go to court for copyright infringement.

Those of us who take our religious liberty seriously have been upset about that bill, particularly with respect to the birth-control mandate that requires the vast majority of employers to provide birth-control coverage for their employees, either directly or through the payment of premiums for health-insurance policies.

To assume that the government should provide access to free birth control is already a giant leap into a Huxley-like world where all of your most intimate needs are taken care of by an unseen, powerful and ostensibly benevolent hand. That's already troubling to people who prize their autonomy. To then be told that even if you oppose birth control for religious or moral reasons, the government will force you to subsidize it - First Amendment be damned - is a violation of the thing that makes us truly American: freedom of conscience.

When I wrote about this issue a few months ago, I received a number of emails from people who accused me of distorting the facts or railing against a problem that didn't exist. Many of those who have an innate hostility toward religion said that they didn't want me to, as one creative lady put it, wrap my rosaries around her ovaries. The general consensus among this type of reader was that no one was going to be forced to violate their beliefs and, if it did happen, tough. (One fellow wrote that, judging from my photo, I probably didn't need birth control anyway so why was I complaining? Sweet.)

Well, I hate to say I told you so, but I told you so. In the months since that last column appeared, a number of plaintiffs have filed lawsuits challenging the birth-control mandate. And a distressing number of them have been slapped down by the federal courts.

Several of the judges who've heard these cases have come right out and said that the plaintiffs are the ones who are trying to impose their religious beliefs on their employees, not the other way around. Back in October, Judge Carol Jackson in St. Louis rejected a challenge to the mandate under the Religious Freedom Restoration Act (RFRA) by O'Brien Industries, a self-insured, Catholic-owned company. The court held that the RFRA "is not a means to force one's religious practices upon others."

The ACLU, that bastion of civil liberties, helpfully chimed in with this: "It's happened time and again that people have used religion as an excuse why they should not have to obey a general law that applies to everyone." Imagine that, refusing to comply with a law that violates your religious beliefs. Shocking stuff.

More recently, a judge in Oklahoma City rejected the challenge of Hobby Lobby Stores, a Christian-owned-and-operated store, holding that the plaintiffs were only "indirectly" burdened by the mandates requirement. That case, like the others, is on appeal.

You might say, hey, it's only birth control, lighten up. In fact, it's not. Some of the drugs involved are proven abortifacents. And even if they weren't, the HHS secretary doesn't get to tell us what part of our religion is legitimate and what part isn't.

So here we are, living in a world where subsidized birth control is now a right, but freedom of religion apparently isn't. Huxley knew what he was talking about: Make people love their servitude by giving them shiny things, and they won't notice the chains around their souls.

Christine M. Flowers is a lawyer.