Dissolving the Inkblot: Privacy as Property Right

Foreword: I wrote this article when I worked for the Cato Institute in the early 1990s. I post it here because I think it is relevant to the recent Supreme Court decision on abortion in Dobbs v Jackson and other landmark cases, including those concerning contraception and gay rights. I could write a critique of my own thesis today, but I still think it is worth sharing in light of the raging controversy regarding the constitutional status of privacy. Where I’ve used the word liberal, please imagine I wrote progressive. I prefer to reserve the word liberal for those — in contrast to progressives and conservatives — who embrace all the implications of self-ownership.

No question in jurisprudence is as muddled as that of privacy. Conservatives refuse to recognize a general legal right to privacy. Big‐​government liberals misconstrue the concept and apply it arbitrarily and opportunistically. They would protect a woman’s decision to abort a fetus but not two business competitors who wished to discuss their pricing strategies.

The dominant liberal and conservative approaches to privacy are unsatisfactory because they are essentially unprincipled. Liberals, such as Laurence Tribe, envision a right of privacy radiating from express provisions of the Constitution, but that right is so narrow that it is self‐​subverting. Conservatives, such as Robert Bork, reject that vision of a right to privacy because they believe that the method used to find it will allow judges to invent rights. Conservatives seem to assume that there is no alternative vision. But there is an alternative vision, one that derives privacy rights from a Lockean framework based on each person’s property in his own life, liberty, and estate.

The Liberal‐​Conservative Debate

Privacy and the Constitution

"[B]oth the [']liberals['] and the conservatives misunderstand privacy. The conservatives engage in a narrow and unnatural reading of the Constitution in order to avoid seeing what they do not wish to see, while the [']liberals['] find in the Constitution not penumbras but a Rorschach test that reveals only what they wish to see. In both cases it comes down to an inkblot. Both approaches allow their adherents to disparage most freedoms and exalt the few freedoms allowed by their respective moral and political philosophies."

"Dissolving the Inkblot: Privacy as Property Right,"
Cato Policy Report, Jan-Feb 1993

The Obamacre Contraception Controversy Boiled Down

"My birth control. My choice. (Your money)."

Recent Scribblings

"Americans Should Reject Obama-Romney Foreign Policy" -- Future of Freedom Foundation

"Contraception and the English Language" -- Project to Restore America

Question

What's there to say about a person who can't tell the difference between contraception and conscience?

Political Illogic

This is what passes for sophisticated argument in politics and the news media:

1. A (contraception, whatever) is desirable;
2. A costs money;
3. Therefore compulsory financing of A is both proper and imperative (either through taxation or an off-budget device such as “insurance”);
4. Opposition to 3 necessarily signals not only a denial of the desirability of A but also a wish to forbid the use of A.

Obamacare, Contraception, and Ayn Rand

It will be little comfort to the advocates of state-mandated “free” contraception that Ayn Rand, who would have abhorred Obamacare and all its mandates, was as staunch an advocate of birth control and women’s right to abortion as one can imagine. Writing about the anti-contraception papal encyclical “Humanae Vitae,” Rand wrote in “Of Living Death” (1968):

Try to hold an image of horror spread across space and time—across the entire globe and through all the centuries—the image of parents chained, like beasts of burden, to the physical needs of a growing brood of children—young parents aging prematurely while fighting a losing battle against starvation—the skeletal hordes of unwanted children born without a chance to live—the unwed mothers slaughtered in the unsanitary dens of incompetent abortionists—the silent terror hanging, for every couple, over every moment of love. If one holds this image while hearing that this nightmare is not to be stopped, the first question one will ask is: Why? . . .

 The passive obedience and helpless surrender to the physical functions of one’s body, the necessity to let procreation be the inevitable result of the sexual act, is the natural fate of animals, not of men. In spite of its concern with man’s higher aspirations, with his soul, and with the sanctity of married love—it is to the level of animals that the encyclical seeks to reduce man’s sex life, in fact, in reality, on earth.

The “Accommodation” that Changes Nothing

Hat tip: Mario Rizzo

Scenario: A woman who works for a Catholic hospital walks into a pharmacy and fills her birth-control prescription. The pharmacy files the claim with her employer’s insurance company. The insurance company pays the pharmacy.

Question: Is this a description of a transaction taking place before or after Obama’s “accommodation” to the Catholic objection to being forced to pay for contraception?

Answer: There’s no way to tell.

Possible objection: But won’t the hospital’s premiums be lower after the accommodation since it won’t be paying for contraception coverage?

Answer: Not if the Department of Health and Human Services is right. HHS says paying for contraception coverage offsets the cost of medical expenses associated with having children. Therefore there is no reason to expect a post-accommodation fall in premiums for Catholic institutions.

Bottom line: If in principle one cannot distinguish a pre-accommodation from a post-accommodation transaction, there is no accommodation at all. The grand compromise is a sham.

This Week's Scribblings

• FFF op-ed: "No One Should Be Forced to Act against His Conscience"
• TGIF: "It's Not about Contraception"

Bad Deal

No woman would choose to spend her own money on birth-control "coverage," because the premiums would amount to prepayment for future purchases plus administrative overhead and more -- in other words, a bad deal. However, if you can get someone else to pay, it's another story altogether.

Insulting Our Intelligence

Updated below.


According to the Obama administration, forcing insurance companies to provide free contraception to women won’t cost the companies a penny. How can that be? Because, officials explained, by providing contraception, insurers won’t have to pay for baby delivery and prenatal care. Brilliant!

Well, not so brilliant.  That bogus argument assumes that women who don’t get free contraception through insurance won’t get it at all. How likely is that?

Mario Rizzo nails this point.

TGIF: Contraception: Insuring the Uninsurable

Insurance arose as a way for individuals to pool their risk of some low-probability/high-cost misfortune befalling them. It shouldn’t be necessary to point this out, but coming of child-bearing age and choosing to use contraception is not an insurable event. It’s a volitional act. It may have good consequences for the person taking the action and society at large, but it is still a volitional act. It makes no sense to talk about insuring against the eventuality that a particular person will use contraception. Strictly speaking, contraception has nothing to do with insurance.

Read TGIF here.