The plaintiffs.

Photographer: TIMOTHY A. CLARY/AFP/Getty Images

A Birth-Control Morality Play Comes to Supreme Court

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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Here's a thought experiment to kick off Ethics 101 class today: Would you kill an African child in order to make yourself slightly wealthier? Let us say there is a button you can push, which will result in a child in Africa painlessly going to sleep and never waking up, and also, a $500 deposit into your bank account. Would you push the button?

NO! Of course not. People with normal morals recoil in horror at the very thought. (If you aren't recoiling, you probably shouldn’t be reading this column, because you have your hands full outfitting your supervillain lair and torturing cats.)

But here's the second part of the thought experiment: Why aren't you sending your money to Africa right now to save children from deadly diseases that we know how to treat, things like malaria?

You would not kill an African child to make yourself wealthier. But you are allowing African children to die so you don't become less wealthy.

You're shouting now. I get it. "That’s not the same as murdering a child!” I agree, so dial down your dudgeon. But why aren’t they the same? Why do we think one is wrong and the other is, well, what basically every nice person we know does?

The answer is that we have strong intuitions about the difference between doing something, and doing nothing. We do not feel strongly obligated to solve every problem in the world, or even solve the problems that we could solve by, say, sacrificing all or most of our personal income. Yet we do feel, very strongly, that actively doing something that causes a bad outcome -- even the same bad outcome -- is wrong.

You may be wondering why I am plying you with philosophy hypotheticals on a Friday afternoon. I’m so glad you asked. The answer is that the moral intuitions laid bare by this thought experiment explain something that a lot of people find hard to understand: why religiously affiliated nonprofits are suing the government to get out of complying with the contraception mandate.

The Supreme Court has just agreed to hear the lawsuits brought by nonprofits that do not wish to certify that they have a religious objection to the contraception mandate. Puzzled bystanders might think that certification paperwork is inoffensive enough. It might even seem that the government has bent over backward to accommodate the groups' objections to the mandate, requiring only that they sign a form indicating their objection.

The reason they don’t want to sign it is that this starts the process whereby the insurer provides the contraception to the nonprofits' employees. The religious groups argue that this essentially implicates them in the provision of birth control, and since they are morally opposed to birth control, they shouldn’t have to do it.

Critics find this objection silly. All the groups have to do is sign a piece of paper! No one’s even making you pay for it.

But in that thought experiment above, all you have to do to get a little bit richer is push a button, and you won’t. Why not? Because of powerful moral intuitions we all share: first, that an action, however small, is morally different from inaction; and second, that any morally neutral action which has as its primary result the commission of an evil act is itself evil.

I don't think birth control is evil, but the people in the lawsuits do, at least certain forms of it, and they are not willing to take part in an evil act in even a tiny way.

That’s why they’re suing. And come next spring, the Supreme Court will have to decide whether this tiny part is really the least restrictive means for the government to achieve its purpose of getting contraception coverage for women. If not, it will be held to violate the Religious Freedom Restoration Act, and the administration will have to go back to the drawing board.

You can expect this suit to trigger all the tiresome culture war fights we saw when the Hobby Lobby case was up before the court. Not because supporters of the contraception mandate don’t understand the moral intuition behind the case -- as I say, this intuition seems to be pretty universal -- but because they can’t really imagine anyone thinking birth control is evil, so for them that moral machinery doesn't clank into gear. They will instead focus on the strong Enlightenment norm that your religious beliefs are your private business, something you’re entitled to enjoy for yourself but not to force on anyone else. Cue the angry Facebook posts, the sarcastic tweets, the shouting at Thanksgiving dinner.

My own intuition is that the Obama administration chose this fight, and should have avoided it by quietly making an exception for religious nonprofits with doctrinal objections.

For one thing, contraception is an inexpensive routine purchase that is exactly the sort of thing that insurance shouldn’t cover (for the same reason your car insurance doesn’t cover routine service: you’d just end up pre-paying the service in the form of higher insurance premiums). For another, the number of people employed by these groups is small.

Picking this fight was not worth amping up the culture wars. America doesn’t need more things to have bitter partisan battles over. We’ve already got a years-long backlog to get through.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Megan McArdle at mmcardle3@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net