An Apology and an Argument about the Argument

A reader with the sartorial name of AndyHat writes:

Also, please watch the ad hominem: “You talk exactly like a PC Lefty seeking the unearned moral high ground, reveling in the strength of an unrestricted state.” I resent that; you have no idea what my actual views are, and I don’t believe that they’re particularly germane to the discussion. I’m simply trying to present counter-arguments to your views from a variety of other viewpoints in order to better understand the arguments you’re making.

Sir, the justice of your comment cuts me to the quick, and I admit the error and seek to make amends. Having once been a Libertarian myself, I have great respect for the breed. The main flaw of the philosophy is that it is inflexible to the point of folly, but the main virtue is that it is inflexible in its purity. To hear a Libertarian blithely espousing statements in direct opposition to the foundational principles of Libertarianism is unheard-of.

To answer your question: all your arguments presented so far are presented on the grounds that the federal government has a valid interest in compelling institutions including charities, schools, hospitals and businesses, to provide services unrelated to any public interest.

Providing sterilization, abortifacients, and contraceptives is neither a health issue nor a public safety issue. It neither repels enemies nor stops fraud. It is not necessary for the peace and dignity of the commonwealth. It is not even an administrative convenience needed for the orderly execution of the laws, such a commanding all motor vehicles to display a license number, nor a public work, such as a library or highway which benefits the citizens. It is not even the erection of a public monument or festivity which arguably might be justified by such imponderables as public morale and the honor due veterans.

It is not a health issue. If the state and local government had an interest in promoting the public health, such as by commanding certain sanitation features and practices to halt the spread of disease, this could be accomplished by enforcing the laws prohibiting fornication and sodomy.

It is not a regulation, akin to establishing standardized weights and measures, or a uniform commercial code governing negotiable instruments, needed to regulate commerce between the several states or with the Indian nations.

I agree that no right is an absolute: every right, if it conflicts with another, must be balanced by some just standard. The Supreme Court has on many occasions, however, drawn a distinction between (1) justifying an imposition on ordinary rights upon a showing of an arguable state interest and (2) justifying an imposition on Constitutional rights, which are much more jealously guarded, and can only be upheld if the state interest is compelling, AND IF not other less obtrusive means exists for serving the state interest.

Add to this, the face that the federal government has no powers aside from the enumerated powers granted under the constitution. This regulation, promulgated by an unelected bureaucrat,  does not arguably fall under any of them.

That is on the one hand. On the other is the First Amendment ‘free exercise’ clause, which strictly forbids the federal government to compel members of a church to that which violates their doctrinal precepts.

We are not talking about some mere formality, such as that saying Catholic women must cover their heads in the chapel. It is a Christian doctrine older than any other regime, law, or institution forbidding the use of abortion and contraception, and this includes abortifacient drugs. The oldest surviving written record of this doctrine is the Didache of the Twelve Apostles, circa 100 AD; all Christian denominations up until the 1930’s adhered to it.

So this is the general shape of the Constitutional Law argument. Now, to argue against this position, you have to allege, first, that some state interest exists; second, that it is a compelling state interest; third, that there is no Constitutional guarantee of free exercise of religion; or in the alternate that this guarantee does not cover this case; four, that it is lawful for secular magistrates to command Catholic institutions such as charities and hospitals and schools to violate Christian doctrine; and five, that it is lawful for the Federal government to do so in this case, despite the violation of the First and the Tenth Amendment.

You have not done so. All you have done is proffer “unclean hand” arguments alleging that for one reason or another the Catholics are insufficiently pure to be allowed to defend themselves: such as by saying that since some Catholics violate the Christian prohibition on contraception, all Catholic institutions are barred from raising an objection to being forced to fund sterilization procedures or funding the distribution of abortifacients.

The logical error here as I said before: if my fellow Catholic is a Pharisee or a sinner, it does not give the federal government the right to decree that the Catechism of the Catholic Church no longer applies to govern Catholic institutions such as schools and hospitals.

You make augments like this: the Catholic Church has an all-male celibate hierarchy; no all male-celibate hierarchy has the right to promulgate divine commandments concerning chastity, abortifacients, or sterilization to its followers; therefore the Catholic Church has no right to promulgate divine commandments concerning chastity, abortifacients, or sterilization to Catholic followers.

Those are not legal, or even rational, arguments. They are PC ad hominem bullshit: an attempt to seize the moral high ground based on victim-group politics. It is an emotional appeal to a set of false-to-facts associations: identifying sterilization and contraception with “womyn’s issues”, identifying males as being of one group with a uniform set of interests and females with another, identifying sterilization and contraception as therefore issues where men are not allowed to make rules or have opinions, blah, blah, blah. It is poisonous nonsense.

If you wish to answer those who make such arguments to you, as a Libertarian, the correct answer is the back of your hand. Your rights are inalienable. That means, your rights do not become aliened from you the moment you join a Church whose members are not perfectly “pure” according to politically correct ever-shifting golaposts of purity.




  1. Comment by AndyHat:

    Thanks for this.

    I think a key premise on which we’re differing is your assertion that this “is not a health issue”.
    Go download the Institute of Medicine’s Committee on Preventive Services for Women “Clinical Preventive Services for Women: Closing the Gaps” at and see the subsection of chapter 5 on “PREVENTING UNINTENDED PREGNANCY AND

    “Pregnancy spacing is important because of the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced (within 18 months of a prior pregnancy). Short interpregnancy intervals in particular have been associated with low birth weight, prematurity, and small for gestational age births (Conde-Agudelo et al., 2006; Fuentes-Afflick and Hessol, 2000; Zhu, 2005). In addition, women with certain chronic medical conditions (e.g., diabetes and obesity) may need to postpone pregnancy until appropriate weight loss or glycemic control has been achieved (ADA,
    2004; Johnson et al., 2006). Finally, pregnancy may be contraindicated for women with serious medical conditions such as pulmonary hypertension (etiologies can include idiopathic pulmonary arterial hypertension and others) and cyanotic heart disease, and for women with the Marfan Syndrome (Meijboom et al., 2005; Regitz-Zagrosek et al., 2008; Warnes, 2004).” Plus lots of stuff on the problems of “unintended pregnancy”, which leads to Recommendation 5.5: “Recommendation 5.5: The committee recommends for consideration as a preventive service for women: the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.”

    This report was produced as a result of the Patient Protection and Affordable Care Act of 2010, and legally provides the basis for claims of “medical necessity” in the new HHS regulations.

    Thus, your claim that “Providing sterilization, abortifacients, and contraceptives is neither a health issue nor a public safety issue” is simply in direct contradiction to the Institutes of Medicine’s claims, and they’ve got the advantage of being the ones who’s opinion matters legally.

    Thus, it is insufficient to attempt, as the petition at does, to merely attack these particular new regulations at this late date on first amendment grounds. Instead, the attack must be against the Institute of Medicine’s report, or the legitimacy of the authority of the Institute of Medicine to make determinations on “medical necessity” in the first place (and by extension, to attack the constitutionality of the entire ACA).

    This is a battle that the Catholic Church should win. This is a battle that should unite the Left and Right against Leviathan. But as the Catholic bishops and, etc., are currently counter-atttacking, it’s a battle that I fear they’re going to lose.

    Thus I’m trying to find the arguments I can use with lefty friends to convince them this is an important battle and not just about some Catholic doctrine that most Catholics don’t even believe in. And some argument I can use with righty friends to convince them that if they limit themselves to a narrow first amendment argument defending Catholics, even if they somehow win this particular battle, they’ll have lost the war.

    My intuition was that this is an issue that, with careful handling, ought to be able to bring Left and Right together to strike a blow against Leviathan. But I’m beginning to think I was being too idealistic about that possibility.

    • Comment by John C Wright:

      I cannot tell if you are kidding or not. You are certainly not a libertarian and nothing like a libertarian if you turn to Caesar to ask whether or not Caesar’s definition of what fits within the power and authority if Caesar is valid. The logic of you quote is the same as saying wearing seatbelts is a health issue rather than a motor safety issue, because car accidents adversely affect the health of the driver.

      This is appalling sophistry on your part. Pregnancy is not a disease. Spacing pregnancies may or may not be prudent for the sake of avoiding a health risk, but using an artifice to induce temporary sterility is not the only method of avoiding this alleged risk, and even if it were, this does not make it a health issue. I can injure my feet if I use the wrong running shoes for a marathon, but cobbling shoes is not a health issue.

      A health issue is treating disease or injury by medicine or surgery. Big Brother indulging in Social Engineering so as to get the population to copulate more and reproduce less is not treating a disease or injury: it is an attempt to alter the mores and manners and customs of society, which a real Libertarian would call a private matter.

      Contraception users have higher rates of pregnancies, abortions, and S.T.Ds. Which is the reason why, when we ship condoms over to third-world countries, the HIV rate gets worse. (

      As for the other prudential aspects of the question: A couple using contraception is more likely to get divorced than a couple using some form of natural family planning. ( Myself, I suspect that a woman’s biological ability to find a compatible mate is being interfered with. ( You may speculate about the reason to your heart’s content, but those are the facts. Those that use only natural family planning have a less than 0.2% chance of divorce. Compare that to the national average of 50%.

      Now, you might say the the divorce rate is not a health issue. To which I reply, it is as much a health issue as pregnancy is.

      If you want to talk about health issues, talk to me about how chemical contraceptive makes women frigid (,8599,1987870,00.html) and unattractive to men (

      If you want to talk about social engineering, my dear Libertarian, talk about how under the contraceptive society, the full burden of contraception is on the women. A hormonal contraceptive places the risk on the lady of the a long list of side effects – blood clots, strokes, breast cancer, nausea, breast tenderness, fluid retention, weight gain, acne, breakthrough bleeding, missed periods, headaches, depression, anxiety, other mood changes, and lower sexual desire – while the man gets infertile sex. The non-hormonal contraceptives involve sticking one form of junk or another up her womb to prevent the womb from functioning as designed, or else the man can don the notoriously inefficient dick balloon, and commit the sin of Onan. The women is forced to regard her own natural blessing of fertility — her womanhood, in other words — as the enemy.

      These links, and these ideas, come from the article FIVE REASON WHY CONTRACEPTIVE SUCK appearing on the illimitable Bad Catholic website. (

      Let me be polite about this: I hear Leftwing nutbag arguments, replete with lapses in logic from Leftwing nutbags who actually believe their crap. You, on the other hand, are a member of a bold and glorious political movement who vows to lay down their lives to resist tyrants, giving me amateurish and illogical pro-tyrant arguments whose blunders are not even original.

      In order to make the intellectual exercise of arguing a point one does not believe merely for the sake of argument, one has to construct real arguments: define your terms, identify axioms, drew conclusions. The fun and edification in such arguments comes in the cleverness, and even the novelty, of using the tools of logic to reach from an unexceptional premise to a startling conclusion.

      On the other hand, hearing an utterly illogical argument from someone who actually believes it is interesting and edifying because he is baring his soul.

      Here, you are doing neither. An argument from authority is not an argument (“Patient Protection and Affordable Care Act of 2010 says that unicycle seat-slipcovers are a health issue, therefore they are a health issue”) nor have you actually passed along to me any arguments from your leftist friends, at least, not ones which even make a prima facea case. In logic, a gratuitous assertion can be gratuitously denied.

      If you are really concerned with finding arguments, I suggest reading Con Law from Gunther, or some other lawschool textbook covering the basics, or the Federalist Papers.

      • Comment by The OFloinn:

        I did some research among the ancestors and found the following birth intervals, in whole years:


        For an average on the close order of 2.6 years between births and a std dev of about 1.2, pretty close to the expected Poisson model for a random process.
        (Stipulated: Many of the 2’s are more like 1.5 and at least one of the 1’s is actually 22 months, but I didn’t feel like resolving down to the month, and in some of the early cases the month is lacking. My next brother, however, was only 362 days younger than me.)

        Note, these data are all prior to the Great Sexual Revolution (aka, the Triumph of the Male) and the contraceptive revolution that enabled it.

        Nor were they well-to-do. I have a photograph of one family a-settin on the front porch of their wood cabin out in Harker’s Hollow surrounded by barefoot kids. Two of the families lived in Ireland during the Great Famine. None of them were ever upper middle class, let alone among the privileged. A parallel analysis of my wife’s ancestors would provide similar results for even poorer families – dirt farmers in East Tennessee, and the like.

        So, you can see why I’m not sure why government-mandated insurance covering birth control and abortion are needed to “space” the births. People in this data set had been spacing for 150 years before any such program was ever dreamed of. Breast-feeding alone delays the onset of next pregnancy by the pretty much the “required” 18 months or longer. Those who believe that the behavior controls the people are sometimes puzzled when it turns out that the people control the behavior.

        But then the reason originally given for birth control by the founders of birth control was to control the births of “undesirables,” among which I cannot but suppose would be numbered my own ancestors.

  2. Comment by Robert Mitchell Jr:

    It seems to me that “unclean hands” is what is going on here, much like Lady Macbeth’s unclean hands. If he is a Libertarian, his highest values are Life and Liberty. But to indulge his lust, he signed off on Abortion, betraying those values, reduced to claiming that A does not equal A, that a child is not a child if it hasn’t completely touched air. Admit error or pull others down to your level. Choices, choices…….

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