The junior senator from New Jersey, Democrat Cory Booker, recently introduced a bill “to establish certain duties for pharmacies to ensure provision of Food and Drug Administration-approved contraception, and for other purposes.” An offhand remark by one of the bill’s co-sponsors is an ideal segue to the question of the role of government in relation to private, peaceful activity.
The Access to Birth Control Act (S.2960) finds, among other things, that there have been reports of pharmacists who refuse to fill prescriptions for contraceptives in twenty-three states and the District of Columbia, even though “access to legal contraception is a protected fundamental right in the United States and should not be impeded by one individual’s personal beliefs.”
The bill therefore mandates that “a pharmacy that receives Food and Drug Administration-approved drugs or devices in interstate commerce” shall provide upon request of a customer a contraceptive that is in stock “without delay.” If a customer requests a contraceptive that is out of stock, the pharmacy must “immediately” inform the customer and “without delay” either (depending on customer preference) refer the customer to another pharmacy that stocks the contraceptive or “obtain the contraceptive under the pharmacy’s standard procedure for expedited ordering of medication and notify the customer when the contraceptive arrives.”
Pharmacies must also ensure that their employees do not harass customers requesting contraception, obstruct the delivery of services relating to a request for contraception, deceive customers about the availability of contraception, breach medical confidentiality with respect to a request for contraception, or refuse to fill a prescription for contraception.
A pharmacy found in violation is liable for a civil penalty “not exceeding $1,000 per day of violation,” but “not to exceed $100,000 for all violations adjudicated in a single proceeding.”
The bill is co-sponsored by seventeen Democratic senators and presidential candidate Bernie Sanders, an Independent.
One of the bill’s co-sponsors, Sen. Timothy Kaine of Virginia, told a local television station that he’s co-sponsoring the bill because “if it’s a constitutional right, you should be entitled to seek this kind of medical care and not have arbitrary barriers put in your way.”
There are so many questions that this bill raises that I almost don’t know where to begin.
Why does the Food and Drug Administration alone have the right to approve drugs or devices?
Where does the Constitution authorize the federal government to have a Food and Drug Administration?
Why is a doctor’s prescription needed to purchase approved drugs or devices?
Why must drugs or devices be purchased only at pharmacies?
Will this bill lead to the government’s mandating that certain contraceptives be stocked by pharmacies?
Is there a right to be served by a particular business?
Why must pharmacists be licensed?
If a bill mentions “interstate commerce” to appear constitutional, does that make it so?
Where does the Constitution authorize the federal government to have anything to do with birth control?
Where does the Constitution authorize the federal government to have anything to do with medical care?
What business is it of the government to establish certain duties for pharmacies and pharmacists?
Is there a constitutional right to birth control?
It is that last question that I want to focus on.
Of course there is no constitutional right to birth control. How could there be? The Constitution not only doesn’t mention any form of birth-control device, it likewise doesn’t contain any reference to medical care, pharmacies, pharmacists, physicians, sex, drugs, or even rock and roll.
However, that does not mean that Americans don’t have the right to manufacture, buy, sell, or use birth control. Merely because a right is not explicitly mentioned in the Constitution, it doesn’t follow that it doesn’t exist. The Constitution doesn’t grant rights; the Constitution guarantees rights. Rights that the government gives, the government can take away. The Constitution specifically guarantees certain natural rights, imposes limits on the government’s power, and explicitly declares that all powers not delegated to the federal government by the Constitution are reserved to the states or the people. That the government does not now follow its own Constitution is true but irrelevant.
Americans have the natural right to manufacture, buy, sell, or use birth control — just as they have the natural right to manufacture, buy, sell, or use any product in a peaceable manner that doesn’t threaten or injure someone else. They don’t have the natural right to purchase birth control at taxpayer expense. They also don’t have the natural right to purchase birth control from someone who doesn’t want to sell it to them. If a pharmacist — for some religious reason (or any reason) — doesn’t want to fill a particular prescription for contraception, then that is between him and the pharmacy that employs him. It is not the role of government to adjudicate such disputes.
Although Americans have the legal right to birth control, such was not always the case. There were once laws in the United States against the mailing, sale, and use of birth-control devices. In 1961, the state of Connecticut still had such a law. It was challenged when the Planned Parenthood League of Connecticut Executive Director Estelle Griswold and a physician opened a birth-control clinic on November 1, 1961. They were both arrested, tried, found guilty, and fined $100. The conviction was upheld by the Connecticut Appeals and Supreme Courts. The U.S. Supreme Court, in the case of Griswold v. Connecticut (1965), declared the Connecticut law unconstitutional, but not on the basis of individual liberty, personal freedom, or private property. The Court declared that the right to contraception (for married couples at least) was based on the right to privacy, which existed because “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”
This newfound government right to privacy was, of course, very arbitrary, as it still is. The government doesn’t care about Americans’ personal privacy. Can you distill spirits in the privacy of your own home? Of course not. Can you sell beer or wine that you make in the privacy of your own home? Of course not. Can you have sex for money in the privacy of your own home? Of course not. Can you snort cocaine in the privacy of your own home? Of course not. Can you operate a blackjack game in the privacy of your own home? Of course not. The government doesn’t care about Americans’ financial privacy either. Try depositing or withdrawing more than $10,000 and your bank must report the transaction to the federal government.
In a free society, private, peaceful activity — even if some consider it to be immoral — is not the business of government. It doesn’t matter whether the activity relates to birth control, pornography, prostitution, drug use, deviant sexual practices, gambling, or making and selling alcohol. It is simply not the proper role of government to concern itself with private, peaceful activity that takes place between consenting adults.
Is there a constitutional right to birth control? Of course not. But there is a natural right for willing buyers and willing sellers to exchange any lawfully acquired merchandise for cash without any government interference. There is also a natural right to engage in any peaceful activity on one’s property or in the privacy of one’s home. There is in a free society. And the Constitution has nothing to do with it.