Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, January 3, 2018

Cecile Richards and the Casual Abuse of Language

A recent post by Margot Cleveland at The Federalist (here) led me to revisit an op-ed by Cecile Richards in The Hill (here).  Among the many contestable assertions set forth in the piece, Richards' remark on then judicial nominee Amy Coney Barrett stands out.  She claims that Barrett "has publicly said that employers should be able to deny their employees access to birth control." 

It is true that, when she was a law professor, Amy Barrett opposed the Obama administration's attempt to repudiate the exercise of the right of conscience and curtail religious liberty through its abortifacient/contraceptive mandate. (See here).  Many MOJ contributors joined in this opposition -- an opposition rooted in both law and morality that was vindicated in the nation's highest court (see here and here).  

Moreover, notwithstanding Cecile Richards' efforts to the contrary, Amy Coney Barrett's nomination was confirmed by the Senate, and she now serves as a judge on U.S. Court of Appeals for the Seventh Circuit (see here).

This happy turn of events should not, however, dissuade us from returning to Richards' casual abuse of language and seeing it for what it is.  Purveyors of abortion, such as Richards, are, of course, famous for employing euphemisms to conceal the gruesome horror of what they actually do (see here and here).

But the abuse of language can take many forms.

The point has already been made by others, but it bears repeating.  Those employers who seek to avoid providing contraceptives and abortifacient drugs through their employee health insurance plans do not thereby "deny their employees access to birth control."  By availing itself of a legal conscience exemption, the employer in no way prevents its employee from driving to the local Walgreens and purchasing a prescription for Ortho-Cyclen or Yaz.  Making use of the exemption does mean that the employer does not wish to subsidize or otherwise directly contribute to a specific legal action undertaken by its employee, but this is not the same as denying the employee access to that course of action.

Indeed, to claim otherwise is to defy the normal meaning of words in English.

To illustrate the point, consider the following.  An employer chooses to provide a number of benefits to its employees -- a 401k plan, a month's paid vacation, subsidized parking, etc. -- but not provide others.  If the employer choses not to provide a particular benefit -- free membership at a health club -- no one would say that the employer had "denied its employees access to the gym."  No one with a basic command of the English language would claim that the employer had prohibited its employees from physical exercise or from living a healthy lifestyle.  We may or may not think the employer's decision wise (e.g. as a matter of encouraging healthy living, or building workplace morale, etc.), but no one would sensibly describe the employer's actions as denial of access to the thing not supplied.  Every employee remains free to lift weights at Gold's or hit the treadmill at Planet Fitness.  They simply must exercise this freedom without the specific financial subsidy or institutional endorsement of their employer.

Of course, the claim of denial of access would make sense in some circumstances. If, for example, the employer refused its employees any time off, the employees would rightly complain that they had been “denied access” to a vacation while remaining employed.  And if the employer declined to make contributions to an employee 401k plan, the employees could say that they had been denied those funds. But they could not say that they had been denied access to saving for their retirement.  In the same way, the employer that chooses not to host a workplace cafeteria could not rightfully be accused of denying its workers access to food – not, that is, without butchering the English language.

Nor would a normal user of English claim that the employer who chose not to provide its employees with free gym memberships be rightfully accused of having "imposed" its beliefs about the value of exercise on its workforce. In the debate over the Obama era HHS abortifacient/contraceptive mandate it was commonplace to hear that the employers opposing the measure were seeking to impose their religious beliefs on their employees (see, e.g. Hobby Lobby, here, Ginsburg, dissenting, p. 32).  This is nonsense.  In seeking an employer religious exemption, the employee is not made to abide by the employer’s beliefs.  Rather both employer and employee are free to follow their own beliefs – as disparate as they may be – without interference from the other.

The casual abuse of language may be ignored, and is easily overlooked, especially when perpetuated by a media sympathetic to the cause being asserted.  The culture wars have claimed many casualties, including religious conscience and the lives of unborn. The ordinary meaning of language should not be added to this toll.


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