In a little over a year, many religious institutions will be forced to buy health insurance policies for their employees. Those policies are required, under a Department of Health and Human Services mandate, to include coverage for contraception and abortion-inducing drugs. Many institutions and individuals paying for these policies have sincere religious convictions against such things. The federal government, however, is planning to force them to purchase these insurance policies anyway. There is one significant problem with this decision by the government: A person’s right of conscience is an unalienable right, and our government can only stifle such rights in extremely specific circumstances.
Now, when many people hear the words “unalienable right,” their minds jump to the Declaration of Independence in which Thomas Jefferson famously wrote that people are endowed by their Creator with certain unalienable rights, and that among those rights are life, liberty, and the pursuit of happiness. An unalienable right is also called a “natural right.” It is a right human beings possess simply by virtue of being alive. They are not bestowed by any law or government. Obviously, “conscience” did not appear on Jefferson’s list, so many people do not automatically consider it an unalienable right. It is important to note, however, that Jefferson’s concept of rights stems from nearly three hundred years of writings on the subjects of faith, humanity, liberty, and equality, and the freedom of conscience was certainly discussed in those writings.
As early as ancient Rome, the philosopher Seneca theorized that a slave may be in physical bondage, but the mind was free and could not be controlled by any slave owner. Martin Luther wrote that secular powers could have no authority over a man’s private faith, and should therefore be content not to try to mandate what people believe in their hearts. In essence, these men were saying that a person’s inner conscience could not be controlled by law or force. It was something a man possessed simply by virtue of being alive, and it was his and his alone.
So can a government ever restrict a person’s unalienable right? Could a person legally murder or steal in the name of conscience or religion? The answer is found, again, in political thinkers who influenced men like Jefferson: John Locke and Thomas Hobbes.
Locke listed life, liberty, and estate (i.e. property) as among the fundamental human rights. Hobbes argued that people abdicate certain portions of those rights when they choose to live together in civil society. So if exercising one of my rights infringes on one of yours, our government decides whose rights win and to what extent. In the courtroom, this is known as “judicial scrutiny.” A person cannot, for instance, kill or kidnap in the name of religion, because his victims have unalienable rights to life and liberty. In legal terms, the victims’ rights receive a higher degree of scrutiny, and the law should always side with them.
So what does the mandate from Health and Human Services have to do with unalienable rights and rights of conscience? Well, the government is mandating that individuals commit an action that violates their inner conscience. Doing so is about as close as the government can come, practically speaking, to trying to legislate what a person should or should not believe: The government may not be able to control the heart, but it can try to control the actions the heart commits.
So can the government justify violating the freedom of conscience when it comes to contraception coverage? The answer is no. Unalienable rights can only be infringed when they violate other equal or greater unalienable rights. For instance, if religious expression violates another person’s right to life, the right to life wins over the free exercise of religion. Contraception is not an unalienable right. It is not something a person possesses simply by virtue of their existence. And even if contraception were a legal right in any capacity at all, there simply is no way it rises to a level equal with a person’s right of conscience.
The government permits pacifists to conscientiously object to wars. It permits people of every political persuasion to assemble, speak, write, and act insofar as they do not harm anyone else. Historically, our government has recognized on some level that a person’s conscience is beyond the control of legislation, and that the government should only regulate the expression of conscience when it has a very compelling reason to do so. Our current government would do well to show the same degree of respect. The right of conscience is an unalienable right, and to force someone to violate their conscience is itself a human rights violation.
