If I demand your wallet, and you say no, have you injured me?
That theory of “harm” is the basic argument supporting Obamacare's abortion-pill mandate against the Hahns and the Greens, Christian families who object to providing abortion pills in their businesses' health plans.
In the government's Supreme Court brief filed Monday against the Hahns, who operate Conestoga Wood Specialties, and in briefs and editorials by outside parties, we hear that religious freedom cannot be tolerated if it causes “third-party harm.” But what is this harm?
The alleged harm is simply that religious people won't be buying abortion pills for others. New York law professors described this harm by repeating the cliché: “The right to swing your fist ends at the other fellow's nose.”
The flaw in this theory is as plain as the nose on your face. Just because you don’t buy something for me doesn’t mean you harmed my freedom, let alone broke my nose.
The nose-punching analogy could apply, but not in the government’s favor. First, let’s acknowledge you have the right to “swing your arm,” religiously or non-religiously, without hitting other people’s noses.
But along comes Cecile. She sells abortion pills and birth control. Sometimes she gives them away and sends the bill to the American people. And she always wants more cash.
So Cecile lobbies the government to declare that your arm actually belongs to Cecile and her would-be customers.
Cecile's political cronies are appointed as bureaucrats implementing the "Arm Control Act." Under the ACA, they enact rules forcing your arm to buy abortion pills from Planned Parenthood and Big Pharma.
When you object, Cecile cries that you’ve waged a “war” on other people’s bodies. After all, it’s not your arm anymore, it’s the government's.
Wanting to keep your arm and your money away from Planned Parenthood means you punched the arm bandits in the nose.
This is Obamacare’s abortion-pill mandate. It asserts a kind of eminent domain over the consciences of private citizens.
It would be like your city condemning your house to give it to a wealthy developer but then claiming you are harming third parties by objecting.
Or, as Jonah Goldberg has explained, we all have Second Amendment rights, but that doesn’t mean family businesses are harming their employees by not arming them with “free” guns.
This is the underlying problem of the “harm” theory trotted out by Obamacare defenders. From where did this “right” to force religious families to buy abortion pills for other people come?
Not the Constitution. And the Supreme Court has ruled that the privacy “rights” it created require those activities to be legal (at most); they don’t force private citizens to participate or require tax dollars to fund them.
In fact, Congress exempted tens of millions of people from receiving these items through insurance. It even authorized government agencies to create exemptions for all religious objectors. The agencies flatly refused.
So, if the government is free to not buy abortion pills for people, how is it “harm” when you object? Because Washington bureaucrats say so, even while they disregard other parts of Obamacare practically every week.
America existed for more than 200 years without a federal requirement to buy abortion pills and birth control for other people.
It cannot suddenly be a “right” enforceable against religious families simply by bureaucratic fiat.
For now, you still have a right to swing your arm without hitting other people’s noses. But be careful. Cecile wants your arm and your wallet, and she’ll use the government to grab them.Matt Bowman is senior legal counsel with Alliance Defending Freedom, which represents several clients in lawsuits against the Obama administration's abortion pill mandate. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.