Posted by: dacalu | 7 October 2017

Birth Control and Business

My friend Sam recently asked me to comment on the complicated subject of religious freedom and US business. I thought some others might be interested as well, so here is my answer.



“I wanted to pick your brain on the rolling back of birth control benefits to women in the U.S., and the concept of “religious freedom” as the justification for doing so.”



There are so many moving parts to this question, it’s tough to know where to start, but let me break it down into manageable pieces.


The Morality of Birth Control

I see “birth control” as fundamentally divided into two categories: abortion and contraception. I see them as very different, in both morality and policy.

I am against abortion and am not convinced, on first principles, that it should be legal in the United States. I also recognize that it is currently legal under the heading of “right to privacy” as understood by the Supreme Court.

I favor contraception, as I think it allows humans to have greater and more conscientious control of their own behavior. Thomas Aquinas and countless other theologians argue that we act best when we act under the direction of our intellect. I see no reason why this should not apply to pregnancy. (Note that Thomas disapproves of contraception because he thinks any form of sex that does not result – at least nominally – in reproduction is bad. I believe this is contrary to New Testament ethics.)

There is some question in my mind about the desirability of contraceptive methods that allow fertilization, but not implantation, but that’s a bit more technical of an argument. I’m going to allow them under contraception in the interests of erring toward the mother’s will, noting that the majority of zygotes do not implant in any case. I feel abortion is wrong (accept in cases where either mother or fetus is not expected to survive to birth) because it involves actively choosing the death of an individual.

From here on out, I will use contraception to refer to all other forms of birth control, including the morning after pill, IUD, birth control pills, condoms, spermicides, …


The Legality of Birth Control

Within certain broad limits, both abortion and contraception are completely legal in the United States.

To the best of my knowledge, however, no federally funded or federally mandated health insurance coverage includes abortion coverage. (Please comment if you have evidence that I’m wrong on this – but only if you have a specific program with details.) To be clear, many employers are required to provide health insurance to their employees. That insurance does cover some forms of contraception. In no case are employers required to provide health insurance that covers abortion.

If a federal mandate to provide insurance covering abortion were proposed, I would be against it. I do not, however, think it would be unconstitutional.


The Religious Liberties of Businesses

Personally, I do not believe that businesses should have freedom of religion. I think the Supreme Court’s decision in the Hobby Lobby case is judicial activism and untenable in long term. Let me explain why.

I see neither a natural law nor a social contract argument for why we have a right to form a corporation or other kind of business. Rather, I believe that a business license is a privilege granted by the state. It grants financial privileges; it comes with obligations. I have no inherent right to a driver’s license, a hunting license, or a real estate license. I do, perhaps have a right to a marriage license. (Truthfully, I don’t think I do. I have a right to be married, but not to have the state recognize my marriage. Still, it’s a common legal idea at the moment, so we’ll grant it.) Nonetheless, I accept that marriage comes with conditions and expectations. There is no reason to believe that a business license does not also have conditions and expectations.

So, an individual without a business license has the right to free religious expression. A business might give up that right when hiring an employee. Do they? And should they? I will argue yes.


The Civil Ethics of Business

The purpose of a business license is to insure pro-social business practices. The society and the state have an interest in regulated ethical treatment between parties. I view this from a social contract perspective. The government provides vital infrastructure and, more importantly, a stable currency and market for business. Businesses in turn make a commitment to certain minimal regulation that preserves that environment. We can (and should) argue about the extent of this regulation, but I hope we agree that some level of regulation is not only desirable, but necessary.

Trivially, taxes and/or tariffs are necessary to fund the treasury and mint; therefore, businesses commit to honest reporting on income and transactions.

Less trivially, trust and consistency are necessary for market stability (at the most basic level); therefore, businesses commit to refrain from destabilizing and overly predatory behaviors (e.g., counterfeiting, false advertising, breach of contract, child labor, slavery, and prostitution).


Different Perspectives on Regulation

One of the major differences between Democratic and Republican perspectives, as far as I can tell, concerns our concept of predatory behaviors. We have consensus that slavery and child labor represent unacceptable monetization of humanity. Market forces should not control their existence and businesses must refrain from both practices. Most people would add prostitution to that list. We consider it a vice, not because sex is bad, but because the sale of sex too often results in the degradation and disenfranchisement of women.

Things become more difficult when we consider other predatory practices. Republicans tend to be concerned about drug sales and pornography. Democrats tend to be concerned about employee and consumer rights. Personally, I am concerned about predatory lending practices, one of the few issues specifically addressed in the Old and New Testaments (note 1), yet seemingly of no concern to Christian politicians.


Individual Rights

US business law represents a long struggle over how to regulate business. This is a good thing as it demonstrates social engagement in the government and in the economy. What is the general welfare and how does business promote it?

I do not see the fundamental divide being between business owners and employees, but between capitalists and labor. How does our regulation of business advantage and disadvantage each? Laborers have gained many rights, including freedom from discrimination and harassment. Meanwhile, they have lost many rights to bargain collectively. Capitalists have also gained many rights, including the right to force employees into arbitration and the right to avoid many types of liability by forming corporations. There is clearly a power imbalance here, but we argue about how large and how it should be addressed.

As a student of Adam Smith, I think laborers should have more rights (their interest aligns with market interests) and capitalists should have less (their interests do not).


Back to Birth Control

I think that all citizens have a social contract right to health care. I think the most efficient way to provide this would be a single-payer system. I think it should include contraception, because intentional reproduction and sexual health are in the public interest – and because it gives women much greater control over their lives, their health, and their livelihood.

The country does not want a single-payer system. We chose instead to have employers provide health insurance. So be it. We decided that providing health care should be part of the business license contract. We decided that contraception coverage should be part of that insurance. And so, it is. I do not always agree with the decisions we make as a country. I think there are many flaws in this one, but given a choice between guaranteed health insurance through employers and no guaranteed health insurance, I choose the former. Given a choice between contraceptive coverage and not, I choose the former.

You don’t get to pick and choose what you want from your government. All of us either opt in (pay taxes, follow laws, and receive benefits) or opt out (and face the consequences). We each contribute to the character of the contract (voting, etc.), but both benefits and costs reflect a compromise of 200 million people. Trust me, I could really go for cafeteria government right now – please give me the economy with a side of academia, hold the military industrial complex. I’d also be happy with 4/9 Supreme Court Justices and about half of the Congress. It doesn’t work that way.


Opting Out for Religious Reasons

Employee benefits are part of the social contract, part of the business contract. They get negotiated at the highest level. But perhaps we can allow people out of them to protect their liberties. It sounds good on the face of it, but it doesn’t work. I am a pacifist. Does that mean I can avoid paying the 16% of my taxes that goes to the military? Sign me up. Does that mean that Christian Scientist employers can avoid providing health insurance all together? What if your religion promotes slavery? American Christianity did only 155 years ago. Perhaps you don’t have to pay some workers at all?

You have a right to your religious beliefs. You also have a right to do business, but only under the conditions set by the law. You do not have a right to do business in accord with your religious beliefs if they contravene the law and – here’s the kicker – take away from the rights of your fellow citizens. My religious liberty ends where yours begins, and vice versa. Thus, Catholic employers do not have a right to impose their beliefs on their employees. Nor, in the US, do they have the right to hire only Catholic employees.



I am a priest. Let me be completely clear. Faith will ask you to go against the social contract, the law, and the society.

I want a society that separates church and state so that my faith is neither privileged nor persecuted. I give up the chance to have my theology dictate the law because I know history. It will always end up with law dictating my theology.

So, when my faith makes me go against the law, I pay the legal consequences – willingly. I have great sympathy for Evangelicals and Catholics who want to preserve their consciences by not providing health insurance with contraception. I have no sympathy for their expectation – either theological or legal – that they can make money while doing so. Our social contract is not set up that way and I, for one, am glad. It sounds too much like fining people for not belonging to your faith.

“No one can serve two masters; for a slave will either hate the one and love the other, or be devoted to the one and despise the other. You cannot serve God and wealth.”


Note 1: Exodus 22:25-27; Deuteronomy 23:19-20; Ezekiel 18:5-17; Psalm 15:5; Luke 6:34-35


  1. Hi Lukas, can I comment on this great post? I have to read it over again. This one statement though: “As a student of Adam Smith, I think laborers should have more rights (their interest aligns with market interests) and capitalists should have less (their interests do not).” – puzzled me. I’ve never read Adam Smith’s work, but I feel now that I am ready to do it. Good thing is that the information in our digital age is at our fingertips. The following excerpt from his book seems to contradict your conclusion about distribution of rights:

    “As every individual, therefore, endeavours as much as he can both to employ his capital in the support of domestic industry, and so to direct that industry that its produce may be of the greatest value; every individual necessarily labours to render the annual revenue of the society as great as he can. He generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it. By preferring the support of domestic to that of foreign industry, he intends only his own security; and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. Nor is it always the worse for the society that it was no part of it. By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good. It is an affectation, indeed, not very common among merchants, and very few words need be employed in dissuading them from it.”

    I wish there was a way to underline text from “and by directing that industry…” to the end of the paragraph.
    Let’s assume for a minute that in your statement, market interests are the interests of the society because your primary objective is absolutely to bring benefits to the society by benefiting market (is it really some sort of an entity separate from capitalists and laborers? as if market has its own interests that are separate from those of laborers and capitalists)
    So, the way I understand this difficult for me text, Smith is talking about each individual’s own intention to pursue their own interests, which is the best “alignment” with the interests of the society (market in your statement) as this benefits it more “effectually” than when they intend to do so (i.e. conscientiously align their interests with the market’s in your terms). Based on this, capitalists should be given all rights they need to successfully pursue their own interests in the name of the benefits of the society. Limiting their rights based on the very fact beneficial to the society should produce an opposite outcome.
    It’s just a thought that popped up in my head when I asked myself how a progressive in its essence idea could possibly be derived from the founder of classical free market economy theory. I have to read his works for sure. Wish me luck :).

    • Dear Vlad,
      Sadly, I am away from my library this week. I encourage you to read all of Wealth of Nations if the topic interests you. It is a challenging read – both in content and style. To the best of my recollection, Smith saw three means of producing wealth – labor, wages for workers; rent, fees for landholders; and stock, profits for capital holders. When he advocates for free markets, he explicitly says that the invisible hand works in that the self-interests of workers and landholders will always end up favoring the interests of the market as a whole. Thus, they should not be regulated. He also explicitly says that the self-interests of capital holders do not always align with the market. They should be regulated. Thus he favors the use of capital, as your quote demonstrates. He does not favor the unregulated use of capital by people who’s involvement in the market is chiefly monetary. Best wishes for reading up on Smith!

      Oddly Enough,

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