The distinction between what the law permits and what the law enjoins is often blurred. An absence of proscription is sometimes mistaken for prescription. The more the law interferes in our lives, the more it becomes the arbiter of our morality. When someone behaves badly, therefore, he is nowadays likely to defend himself by saying that there is no law against what he has done, as if that were a sufficient justification.
The recent Supreme Court decision in the cases of Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Burwell illustrates the difficulties when two or more rights clash irreconcilably. The complex issues involved were the subject of an article in a recent edition of the New England Journal of Medicine. The matter is still far from settled. It seems to me likely that the Supreme Court will one day reverse itself when its philosophical (or ideological) composition has changed.
The two corporations were owned by strongly religious people. Corporations of their size were enjoined by the government to provide their staff with health insurance which would cover contraceptive services. However, some contraceptive methods violated the religious beliefs of the owners of the companies. Did the companies have the right to except these methods from the policies that they offered to their staff (who, incidentally, numbered thousands, many of whom would not be of the same religious belief)?
Let us take a less contentious example. Suppose the owners of the corporations had a religious objection not to abortifacient contraception but to blood transfusion, and wanted to exclude all procedures that required blood transfusion from their employees’ insurance policies. It seems to me likely that 90 percent of the population at least would regard the objection to blood transfusion as cranky, and therefore that it should not be made the grounds for exclusion.
However, this argument makes the question a psephological rather than a philosophical one. It is not easy to say with any certainty at what point an opinion becomes a cranky one; the borders between the cranky and the accepted change rapidly, and what was laughable only a few years ago becomes a moral orthodoxy in the intervening period.
There are those who would say that the problem arises only when the government mandates anything. If it hadn’t decreed that every woman has the right to contraception, not in the sense that contraception in all its forms is legally permissible but, de facto, that every woman who wants it must be provided with it, the cases would not have come before the Supreme Court. Without the mandate, women who wanted the kind of contraception that the companies opposed would have had the choice between finding employment elsewhere with more liberal health insurance, and finding another means of obtaining contraception, for example by paying for it.
Rights to tangible goods and services tend to create corresponding duties upon someone to provide them. For example, if I have the right to assisted suicide, and if the right is not to become a dead letter, someone has to assist me. But who, if all the doctors around me disagree with assisted suicide? Will I then have grounds to sue them for infringement of my rights, and if so which of them? Any of them? All of them? The right to assisted suicide will rapidly become a duty to perform it.
That is, unless we understand that a right does not include its fulfillment. I have a right to buy a mansion, but I can’t exercise it because I don’t have enough money. I do not consider my right infringed by this unfortunate limitation; but unfortunately, this is not how most people understand rights.