This past Monday, the Supreme Court ruled in Burwell v. Hobby Lobby Stores, Inc. that a company is not required to provide healthcare that covers the cost of contraception if this violates the religious beliefs of the company. Like clockwork, every possible communication medium has been swarmed with praise from the Right and objections from the Left. The Right is lauding the decision as a win for the free market, and the Left is lambasting it as another Christian-conservative shackle on women’s ankles in the form of an effective ban on contraception. So with whom ought the libertarian side on this issue?
Judging by the over 400 upvotes for a Matt Walsh blogpost on the Libertarian subreddit, the libertarian community appears to be siding with the Right. In the post, which is titled “Want birth control? Go buy it. Nobody is stopping you,” Walsh makes the argument that if women are not satisfied with the healthcare their employers provide, they can easily go elsewhere for alternatives. But he also takes the time to say a few ignorant things about the opposition. In criticism of the Left’s labeling the court decision an attack on women, Walsh writes,
Why is it always birth control and abortion that must be the ‘women’s issues’? Why, progressives? Are women feral dogs that need to be sterilized? Are they pests that should be prevented from reproducing?
Why can’t you ever call education a woman’s issue? What about foreign policy? The economy? Women only have something to add when the discussion turns to birth control pills and Planned Parenthood, eh?
Walsh, perhaps purposely, misunderstands what progressives mean when they suggest that a certain political topic is a ‘women’s issue.’ The phrase does not mean that women only care about or are only allowed to opine on these topics; rather, it means that these are issues that exclusively affect the rights of females. The right to use birth control or to have an abortion is not a right pertinent to males because males are not capable of bearing children. The illegality of birth control and abortion does not limit a man’s range of actions. Walsh is trying to find dehumanizing rhetoric where there is none.
Addressing the actual issue at hand, Walsh correctly points out that Hobby Lobby does in fact provide its employees with birth control and that the Supreme Court’s decision does not mean that employers can prevent their employees from acquiring and using birth control. He errs, though, when he says, “If your boss is in your bedroom, call the police. Or stop inviting him in. When you ask him to pay for what you do in the bedroom, you are inviting him in. Want him out? Good. Then stop making your birth control into a national headline. Deal with it yourself, privately.” The problem with this is that there are existing government barriers to women dealing with it privately.
In many countries, birth control does not require a prescription from a physician. In these countries, women who want birth control can “deal with it” themselves. The United States, however, is not one of these countries. Despite the American College of Obstetricians and Gynecologists’ recommendation that birth control be available over-the-counter, the Food and Drug Administration has been stuck in consideration for over two decades, despite how safe the drug is.1 Laws requiring women to pay out of pocket to visit a physician, undergo a pap smear and a pelvic exam, and acquire a prescription before they can deal with it themselves as Walsh suggests indicate that we do not live in the free market on which Walsh’s argument depends.
The argument that people can acquire birth control privately on the free market if they do not like their employer’s coverage assumes that there exists a free market. But that is clearly not the case. Despite these government-constructed barriers to free trade, Suzanne Schaefer from Students for Liberty insists that “the conflict is not about men versus women, or even the state versus women; it is an argument about the right to choose.” When companies are given the right to choose whether to provide certain contraception but women are not allowed to choose to buy birth control without a physician’s consent, it is absolutely a conflict of the State versus women.
These types of arguments are guilty of what Roderick Long has termed ‘right-conflationism,’ which he explains as “the error of treating the virtues of a freed market as though they constituted a justification of the evils of existing corporatist capitalism.” The fact that many women do not have access to birth control cannot be defended with the reason and rhetoric of free markets, because this lack of access is not taking place in a free market. Unfortunately, many libertarians often trap themselves into defending the outcomes of corporatist capitalism in this way.
Considering government interventions that cause the market for healthcare to be less than free, one might ask why healthcare is even tied to employment in the first place. As is to be expected, government intervention is once again to blame. From Anton Batey of Mises Daily:
The current system of employer-provided health insurance traces back to domestic policy during the World War II era. Due to government policy, inflation grew both before and during WWII. As a “remedy,” caps on wage increases were imposed by the government. In response, employers began to offer their employees health insurance to soften the blow and attract quality workers.
The federal government did not consider an increase in health benefits a violation of these wage controls, and in 1943 the IRS ruled that health benefits were tax exempt for workers. After the wage caps were abolished, health insurance benefits became seen as the norm and were not eliminated. For instance, by the early 1960s, General Motors was paying 100% of the healthcare bills for their employees (retirees included).
Health benefits retain this tax-exempt status in the twenty-first century. The binding of healthcare to one’s employment is a result of the existence of an income tax. Receiving compensation for labor partially in the form of healthcare is a less expensive way of getting paid for workers, and a less expensive way of paying workers for the company. And so the linkage between employment and healthcare persists. Paying for one’s own insurance with his paycheck is too expensive in taxes to be a viable alternative for most.
Government limits options even further by the myriad market interventions that create an oligopsony in the market for labor. Government-constructed barriers to entry for new businesses and favoritism toward the politically well-connected big businesses severely limits the number of buyers of labor. This artificially limited number of employers, in turn, means that there is an artificially limited number of alternatives for those who are not satisfied with the healthcare package their employer provides.
So when Matt Walsh and countless libertarians suggest that if one doesn’t like their employer’s health coverage, they can choose to work because “that’s how the free market works,” they are again committing right-conflationism. The correct position for libertarians and those of the Austrian school of economics, then, is not to praise the Supreme Court’s defense of the free market in the Hobby Lobby case, but to point to the favoritism given to the employer over the employee. As Brad Spangler has pointed out, “Austrian economics is quite clear on the cartelizing effects in the business world of statism.”
To the libertarian, the Left’s position is unsatisfactory because it is illegitimate to force employers to provide their employees with any feature of health coverage. But the Right’s position is also unsatisfactory because defending the free trade when it benefits businesses but quietly accepting intervention as it harms workers is not a true defense of the free market. The libertarian ought to show only tepid approval of the Supreme Court’s decision not to introduce further intervention into the already unfree market, and ought to encourage further deregulation, including that which expands the number of options for those dissatisfied with their employer’s coverage options.
Mises Christ! 
The American voting public is still unwilling to part with employer based insurance and supports the FDA. Add in the individual States various controls on insurance and there’s a recipe for poor quality, overpriced and rationed healthcare. High quality and cost effective health care requires government and employers stop manipulating the market.
It is my understanding that routine physicals would still be considered required coverage under the Hobby Lobby decision. Since a pap smear and pelvic exam are routine for sexually active females, I don’t see how there is a barrier to care. If your doctor prescribes treatments not covered by insurance, the patient has the option of paying cash for the treatment.
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Great article!
I can’t tell you how many times I’ve heard Libertarians regurgitate Walsh’s quote about “quit inviting him in”. It lays blame on women where it doesn’t exist. It is an emotionally charged accusation that is both false and irrelevant. False because ACA was created by the government and implemented by the same government. We never voted on it, we never had a choice. Women aren’t responsible for the fact that the birth control mandate exists. It just does. Women aren’t inviting their bosses in, the government invited him in. It’s law now, like it or not. Libertarians easily and conveniently forgot that this case wasn’t about fighting the ACA, but was about a company feeling like it has some kind of special status to be exempt from a law they don’t like and, like you said, effectively giving preference to the business owner over the individual employees. Change the scenario. What if a company wanted a religious exemption from complying the mandate to pay their due half of employee FICA taxes because they didn’t want to be associated with future Medicare money being used for something they find sinful? They would be laughed out of the courtroom and told to obey the law or close the business. Which brings me to my next point–irrelevance. Just like the mandate to pay 7.5% of your employees’ FICA tax (like it or not), employers are now required by law to pay for various forms of birth control (like it or not). When you remove the controversial details of the case, you are left with a very basic scenario–does corporate personhood extend into the realm of inalienable rights? There was a time where the word “corporate personhood” made a Libertarian cringe, but their anger over the ACA has clouded their judgement in this case. The implications are dangerous and there will be unfavorable, unintended consequences. We have to apply Libertarianism in the real world we live in, not in the hypothetical world we wish existed.
[…] of the left. Though the Hobby Lobby ruling left behind a rather conflicted libertarian response (read MC!’s verdict), many women took to various forms of social media to express their distaste at a ruling that […]