Once Again, the Obamacare Mandate is a Violation of Freedom of Speech

Update: Obama just announced his "compromise" which is pretty much what was predicted and as usual pretends everyone is playing politics, except him who rises above everything.  Right.

So all week there has been this uproar about the recent ruling that religious employers—like churches or church-based hospitals—would be required to provide “contraception,” a popular euphemism for a set of rules that include coverage for the abortion pill.  Last Sunday I was at a Catholic church and just about the entire homily (or “Sermon” to us Protestants) was reading off a letter in protest of this policy.  And today we get word of a weak “accommodation” where the religious based employers will not have to provide it in their insurance policies, but the insurance companies would still have to provide it to the policy-holders.

So how does that work?  Ordinarily insurance works by taking a large number of policy holders’ money and putting it into a pool and then distributing the benefits to policy holders.  Instead of that, it won’t be officially offered as part of these employers’ plans, but it will be part of the package of benefits they offer, paid for presumably by the common pool.  Which, gosh sounds like exactly the same thing but with the usual governmental layer of red-tape, regulation and bull____.

Of course that is only the rumor of the offer, and possibly even a trial balloon, so maybe that won’t be the final proposal.

But the funny thing is that I addressed this very issue a few months back and pointed out that this is positively a reason why the Obamacare mandate (to employers or individuals) is unconstitutional.  You see very often the argument against the mandate focuses on the idea that the Federal Government doesn’t have the power to force you to buy a good or service.  And they are certainly right.  But you can say more than just that the Constitution doesn’t affirmative grant the power.  You can say that the Constitution affirmatively prohibits the Federal Government from enacting such a mandate.  There is also a positive right not to buy a good or service from a private company, in the First Amendment.

There is, after all, a right to boycott.  As I wrote over a year ago when discussing the Liberty University case (a less-famous Obamacare challenge by Liberty University and scattered individuals):

[I]s there an expressive element to refusing to engage in a transaction, ever?

Of course there is, and it is one of the oldest forms of expression known: the boycott.

Liberty University and the scattered individuals who sued in this case have a constitutional right to refuse to associate with any entity that engages in abortion, to boycott it (and this is true of any issue, not just abortion).    Even if none of their money touches an abortion doctor’s hand, they are allowed to say, “as long as you allow this, I will not contribute my money to your company.  I will not associate with you.”

In NAACP v. Claiborne Hardware Co., the Supreme Court said that “[t]he right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself.”  The same would assuredly apply to the Federal Government.  And yet this decision has effectively said that where interstate commerce is involved (and according to the court [in Liberty University] it is always involved in everything, apparently), Congress can effectively outlaw the boycott.

I mean consider a simple example.  Rosa Parks one day decides she is not giving up her seat to a white man even though a law purports to require her to, and as a result, she is arrested.  In response Martin Luther King, Jr. and many others lead a boycott of the bus system.  But, according to the court in Liberty University, Congress could pass a law requiring every person to use a city bus for transportation where it is available, and thus outlaw the Montgomery Bus Boycott.

And this applies to any issue you are concerned about.  Maybe you don’t want to deal with any country that invests in Israel.  Or you are upset at a company because it has divested from Israel.  Or whatever your issue is.  The point is that people boycott companies for lots of different reasons if you are forced into an economic relationship with a company against your will, it is a violation of your right to boycott.

And really, in general, the government should not make a person choose between reasonable, deeply held convictions and obeying the law.

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