No “Right” to Abortion or Birth Control

Washington Post columnist Kathleen Parker writes about the intimidation tactics wielded by the Left against the Catholic Church with Obama’s Free Birth Control Rule and in the How Dare Komen defund the sacrosanct Planned Parenthood! brouhaha.  She starts her column with an unintentionally false assertion.  From “Komen, Catholics and the Cost of Conscience:”

Two of the top news stories this week have revolved around reproductive rights, though both raise far more troubling issues than a woman’s right to contraception or abortion.

Parker is writing loosely, but this is an important liberty point: Women don’t have the “right to an abortion,” as in, the constitutional right to obtain it under force of law.  Ditto contraception.  That would be a positive right to receive the service or procedure.  There is, as yet, no such positive right to either  Indeed, that is what the fight over medical conscience is all about.

Women do have the right to obtain it if they can find a willing provider—a negative right against state interference with that “choice.”  Neither Griswald v. Connecticut, which prevented the state from restricting birth control to married couples (how quaint), nor Roe v. Wade, which prevented the states from criminally punishing abortion in most cases, created positive rights.  They created negative rights.

Negative rights—and let’s not argue here whether Griswald or Roe were properly decided—promote personal liberty by limiting the power of government over the actions of individuals.  In the abortion case, both the woman and the non willing doctor have the right to seek and refuse. Positive rights, on the other hand, expand the power of government dramatically by guaranteeing access to actions or services deemed entitlements.  Thus, in the Free Birth Control rule, Obama is destroying the enumerated negative right of Catholic organizations to the free exercise of their religion.  Many also wish force medical professionals to participate in abortion and contraception dispensing as the price of being licensed.

The difference between a society based primarily on negative rights and one primarily based on positive rights (and no society is all one or the other) is the difference between the American Revolution (negative rights) and the French Revolution (positive rights). President Obama and political progressives tend to support the establishment of broad positive rights as a way of imposing their social, cultural, and ideological beliefs on everyone, even at the expense of deconstructing existing constitutionally enumerated negative rights—precisely the opposite of the ”tolerance” and “diversity” for which they falsely credit themselves.