If you are a woman, you no longer have the same rights you had 41 years ago.
January 22 is the anniversary of the 1973 Supreme Court decision in Roe v. Wade, in which the court ruled that women have a constitutional right to choose to have an abortion.
But in the intervening decades, that right has largely disappeared, a process helped by media outlets that have misinformed on these safe and legal health procedures.
Thanks to Supreme Court rulings that came after Roe, states are now free to regulate and restrict abortion so long as new laws do not impose an "undue burden" on a woman's right to choose. But state legislatures are currently testing what qualifies as an undue burden, and in 2013 alone 70 different anti-choice restrictions were adopted in 22 states across the U.S. In fact, according to the Guttmacher Institute, more abortion restrictions have been enacted in the past three years than in the entire previous decade.
In December, Ian Millhiser and Tara Culp-Ressler published a thoughtful piece about this process at ThinkProgress headlined, "The Greatest Trick The Supreme Court Ever Pulled Was Convincing The World Roe v. Wade Still Exists." They argued that while a woman's right to choose an abortion is still ostensibly covered by the constitution, the reality is that right is increasingly restricted to just wealthy women who happen to live in (or are able to travel to) one of the few states that will still permit them the opportunity to exercise that right.
This sustained attack on women's rights is fast becoming a key issue for politicians in the 2014 midterms. But the media have also played a sizeable role in this process, contributing to the vanishing power of Roe by allowing anti-choicers to control the conversation.
Conservative media figures have sharply criticized the recent push by Democratic politicians to alleviate poverty and reduce economic inequality. However, most of this criticism is grounded in a number of myths about the causes, effects, and importance of growing economic inequality in the United States.
From the January 18 edition of MSNBC's Disrupt with Karen Finney:
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The National Review Online decried new federal guidelines that could reduce the number of needless arrests and incarceration of minority students in public schools.
On January 8, the Department of Justice (DOJ) and the Department of Education (DOE) issued new, optional guidelines to help public schools develop non-discriminatory disciplinary policies. Right-wing media were quick to accuse the Obama administration of playing the "race card" because the guidelines addressed the fact that minority students are far more likely to be disciplined -- often unfairly and excessively -- for nonviolent and minor disruptions in school. Because more and more schools rely on armed police officers known as "school resource officers" to handle behavioral problems, many students of color end up getting arrested and incarcerated.
NRO has previously called the new DOJ guidelines "disturbing." But in a January 16 editorial, the site went further, complaining that the guidelines were an overblown response to "spectral racism" and were based on "arbitrary evidence" (emphasis added):
The Obama administration is no stranger to trying to micromanage complex, intractable problems from Washington. But using the Civil Rights Act to direct schools' disciplinary practices might be its most foolhardy idea yet. Beginning in 2010, the Department of Education, led by the occasionally sensible Arne Duncan, announced that it intended to pursue vigorously civil-rights violations in the American school system. That's led to a number of DOE investigations of various school districts with racially disparate discipline rates.
The feds contend, as an aside, that discrimination in discipline shows up in studies when controlling for poverty and other factors, but the evidence for this contention is ludicrously weak. Federal civil-rights investigators don't have to publicly disclose the grounds they've used to initiate investigations of racial discrimination, but their work so far leans as heavily as the new guidelines do on evidence of disparate statistical impact, rather than on indications of real bias and disparate treatment. They will not admit that they rely on such arbitrary evidence, since there is little statutory justification in the Civil Rights Act for such a disparate-impact case, but the objection is clear enough: Certain minorities are disciplined at higher rates than whites are, so racism must be at work.
When such a simple heuristic is applied, schools will feel even more pressure than they already do to adopt a simple solution: try to discipline all races, regardless of behavior, at the same rate. This might mean arbitrarily increasing rates of punishment for whites or, much more likely, reducing them for blacks and Hispanics, disadvantaging their classmates of all races who'd like peaceful classrooms.
No one should be surprised by the Obama administration's zeal for alleging racial discrimination when it isn't there ... But it is still shocking that the federal government is effectively encouraging schools to judge students on the color of their skin rather than the content of their character.
The entire point of the DOJ's guidelines is to encourage schools to stop mistreating students based on the color of their skin, so it's odd that NRO would conclude the exact opposite.
National Review Online columnist Mona Charen lamented the marginalization of anti-LGBT bigotry, writing that acceptance of LGBT people is largely due to "fashion" and decrying the affirmation of LGBT youth as "child abuse."
In her January 14 syndicated column, Charen responded to a recent op-ed in The New York Times urging medical providers to ensure that transgender patients have access to fertility treatment. To Charen, the op-ed marked merely the latest indicator of society's "obsession with sexuality as identity" and its "undermining of the best interests of children in favor of the self-expression of adults." The decline of homophobic and transphobic bigotry is evidence to Charen that "[w]e have elevated sexual appetites ... to an exalted status" (emphasis added):
There are limitless identities that students could be encouraged to cultivate as they mature. A handful that leap immediately to mind: American, humorist, musician, athlete, debater, nature-lover. Instead, our universities fall all over themselves to encourage unusual sexual identities, from homosexuality and lesbianism to transgender, bisexual, transsexual, and other. It's all done in the name of "inclusion" and non-discrimination, but, let's face it, there's an element of fashion in it.Non-traditional sexual behavior is "in." There are academic courses on offer at major universities concerning "queer theory," pornography, and "lesbian gardening." (Truly.) How can any serious academic treat pornography as a fit subject for college study? It's more than a devaluation of the life of the mind; it's an assault on human dignity.
We have elevated sexual appetites -- especially unusual sexual tastes -- to an exalted status, worthy of study, defining our natures and experiences, and outranking other traits in importance. In many states, there are moves to outlaw psychotherapy that purports to change a person's sexual orientation. Without excusing or approving abusive efforts to brainwash gay people straight -- and there are some hair-raising stories out there of people subjected to "aversion therapy" and so forth -- it is interesting that we are being asked to deny people the opportunity to change in only one direction. No one is suggesting that if a straight person wants to become gay and consults a therapist who wishes to help him make that transition, that he should be prevented from doing so.
Perhaps gay activists aren't campaigning for "ex-straight" therapy because their own experiences bear out the absurdity of the idea that one's sexual orientation can be changed. But to Charen, simply acknowledging this fact brings "sexual appetites" to an "exalted status."
Charen proceeded to criticize measures adopted to affirm transgender youth, mischaracterizing a California law that allows transgender students access to facilities that match their gender identities and condemning hormone therapy for transgender youth as "child abuse":
This is child abuse. Children pass through phases. Nothing permanent should to be done to any child that is not medically necessary. Suppose a child decided that he wanted to be an amputee or a one-eyed pirate? We've lost all common sense in the face of this mania for sexual mutability.
Charen's framing of the California law dovetails with that of other right-wing critics of the law, who have peddled baseless fears about inappropriate bathroom behavior that will result from letting each student "choose" which bathroom he or she wishes to use. In reality, school districts are implementing the law on a case-by-case basis to ensure that students using it really are transgender. Moreover, school districts that have implemented similar policies have reported no instances of inappropriate behavior.
Right-wing media are already spinning falsehoods and fear-mongering about the federal government's administrative decision to recognize federal marriage benefits for same-sex couples who were married in Utah.
On December 20, a federal judge ruled that Utah's ban on same-sex marriage was unconstitutional. Shortly thereafter, state officials began issuing marriage licenses to same-sex couples. However, on January 6, the Supreme Court of the United States temporarily blocked the ruling as an appeal progressed -- halting the issuance of marriage licenses and causing a great deal of confusion for those couples who had already exchanged vows under state law.
In light of that confusion, Attorney General Eric Holder announced on January 10 that for purposes of federal law, legally married couples affected by the ruling would in fact be eligible to apply for federal marriage benefits while the litigation worked its way through the courts. As Holder observed, one of the core holdings of the landmark marriage equality decision of United States v. Windsor is that the federal government is prohibited from discriminating against lawfully performed same-sex marriages.
Nevertheless, right-wing media were quick to overreact to Holder's announcement, with Rush Limbaugh accusing him of acting like "Stalinists." National Review Online joined Limbaugh in condemning Holder, calling it another example of the "lawlessness of the Obama administration." From The Rush Limbaugh Show:
LIMBAUGH: So the states, when you've got people like Holder and Obama in office, it doesn't matter what governors do, it doesn't matter what the people of the state want. What Holder and Obama want is what's going to happen. Holder does not have this kind of power or authority, but he does if nobody is going to stop him or challenge him.
So the law doesn't mean anything. Existing law doesn't mean anything if changes to it are being contemplated, and so the people of Utah -- same-sex marriage, yes, no, are now victims, and the federal government is just going to ride in and wave the powerful magic wand and say, "This is the way it's gonna be." So who needs governors? You have the attorney general engaging in executive actions, executive orders, just as if Obama were to do it. Stalinists, folks.
There is nothing lawless about the federal government making a determination about the disbursement of federal benefits. Doing so does not usurp the state's authority to recognize or acknowledge certain relationships for the purposes of state benefits. Holder's statement today does not require Utah or any other state to recognize same-sex marriages. Rather, it provides some certainty to couples whose marriages were legal under state law at the time they were performed. Among others, this legal opinion has been offered by Utah Attorney General Sean Reyes, who informed state officials that "marriages between persons of the same sex were recognized in the state of Utah between the dates of December 20, 2013 until the stay on January 6, 2014. Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed."
Right-wing media were quick to discount a report from The New York Times' David Kirkpatrick that debunked favored conservative claims, but the outlets offered scant evidence to contest Kirkpatrick's findings. Instead, they resorted to questioning the Times' actions during the attack, baselessly claiming that the paper "whitewash[ed]" Hillary Clinton's culpability, and scouring outdated reporting to hype a tenuous Al Qaeda connection.
2013 was an epic year of right-wing media misinforming the public on the health care debate, particularly on women's health issues. Ignoring women's health experts, conservative media spent this year stoking fears about everything from birth control to maternity care, ignoring science, distorting state and federal regulations, and demonizing women's health care options in the process. These are the top six scare tactics from 2013.
Conservative media outlets have repeatedly asserted that the Employment Non-Discrimination Act (ENDA) - federal legislation that would ban employment discrimination against LGBT workers - discriminates against Christian businesses, but a new report from PolitiFact has rated that claim "False."
On December 16, PolitiFact evaluated a fundraising email from the Traditional Values Coalition (TVC) which claimed that ENDA would unfairly punish Christian businesses. PolitiFact rated TVC's claim "false," noting that ENDA includes religious exemptions that are actually more generous than those contained in other federal non-discrimination laws.
PolitiFact also noted that non-religious businesses operated by religious individuals have to comply with the law regardless of the business owner's faith (emphasis added):
Under Title VII [of the Civil Rights Act of 1964], and therefore under ENDA, religious organizations, which need not be church-run, would be exempt. Additionally, all businesses with fewer than 15 employees are exempt, whether they're religious or not.
Nelson Tebbe, a professor at Brooklyn Law School who specializes in religious liberty, said ENDA's religious exemption exceeds Title VII's.
"It's broader because the religious exemption in Title VII only allows religious organizations to discriminate [against LGBT individuals] on the basis of religion," he said. But it doesn't allow religious groups to discriminate based on factors like an employee's gender or race.
So by permitting religious organizations to discriminate on the basis of sexual orientation and gender identity, ENDA allows them more flexibility than Title VII.
The bill's religious exemption indicates that churches, church-run initiatives and other religious businesses need not comply by employing people of all sexualities and gender identities. And there's no special negative treatment for Christians.
Businesses of any religion could qualify for the exemption. Individuals of any faith who oppose sexuality would have to abide by the law, so no religion is singled out.
We rate this claim False.
The myth that ENDA would discriminate against Christian businesses has been widely debunked, but that hasn't stopped the lie from gaining prominence among right-wing media outlets.
Men are under threat. Despite the fact that women still make less than men do, are hugely underrepresented in media, and face so much sexism on a daily basis that Republicans actually have to undergo training to learn how to talk to women in non-offensive ways, conservative media would like you to know that it's really men who have it tough.
The "War on Men" is waged on multiple fronts, from elementary school classrooms to the workplace to men's own marriages. Nowhere is safe. So to help the besieged men out there, here is a list of all the things conservative media said were examples of the "War on Men" in 2013.
1. Kids Don't Play "Tag" Anymore.
In September, National Review Online hosted a debate which asked "Is there a war on women? Or is it a war on men?" An example of the suffering of men, according to the panel, was that "schools are replacing boys' favorite game, 'tag,' with a more female-friendly alternative called 'circle of friends.'" As Alice Munro noted in the New Republic, this isn't true.
2. "Female Sexual Freedom."
The "War on Men" really began with contemporary feminism in the 1960s, according to Wall Street Journal editor James Taranto, when women dared "to be equal to men" and wanted "sexual freedom":
MARY KISSEL: [W]hen did this war on men begin? Can you pinpoint a starting point?
TARANTO: Well, it all goes back to the beginning of contemporary feminism in the early '60s. You know, women wanted to be equal to men, they wanted to be able to do all the sort of professional things including the military that men could do, and --
KISSEL: Was there anything wrong with that, though, James? I mean, that sounds --
TARANTO: Well, that's too long to go into now, the question of what's wrong with that, but in addition they wanted sexual freedom. Well what is female sexual freedom? It means, for this woman, that she had the freedom to get drunk, and to get in the backseat of the car with this guy. There was another woman who accused him, he was acquitted in this case, of sexual assault. This so-called assault happened in his bedroom, to which she voluntarily accompanied him, even the jury said that was consensual.
According to conservative media, the Affordable Care Act's mandate that insurance companies can no longer discriminate is the same as "sticking it to men" and waging a "war on bros." In reality, the law makes sure insurance companies can't force women to pay more for health care just because they are women.
4. "Feminized" Schools Have Rules, Standards.
The "War on Men" starts "as a war on boys," according to NRO's Helen Smith, which manifests when schools "take away recess" and adopt "a feminized approach to schools to the point where it is mainly for those who conform, sit still, and like to follow rules."
5. Sometimes, Men Are Accused Of Sexual Harassment.
Wall Street Journal editor James Taranto fights the "War on Men" on a regular basis. In June, he dismissed the epidemic of sexual assault in the military, claiming that efforts to address the enormous problem contributed to the "war on men" and were an "effort to criminalize male sexuality." Taranto conveniently ignored the fact that many victims of sexual assault in the military are also male, and that most men probably don't agree that "male sexuality" necessarily includes having sex with drunken women in cars.
6. Commercials And Sitcoms Make Men Look Stupid.
In 2012, FoxNews.com columnist Suzanne Venker claimed that a factor in the "War on Men" was that "Women aren't women anymore," because now they have college degrees and have sex outside of marriage. In 2013, she took this probing analysis further, saying that men -- who are "second class citizens" -- are under threat because Title IX forbids discrimination in college sports and because of "sit-coms and commercials that portray dad as an idiot."
7. Women Work Full-Time Jobs.
In December, Venker uncovered yet another layer in the war on men: women these days are "financially independent," and despite the "simply irrefutable" fact that they "prefer part-time work," many continue to insist on working full-time jobs, harming men's ability to fulfil their natural inclination to be primary breadwinner.
8. Women Would Like To Make The Same Amount Of Money Men Do.
At FoxNews.com, Carrie Lukas argued that President Obama's nominee to the Office of Personnel Management was the new "general" in the "war on men's pay," because she was tasked with attempting to close the gender wage gap in government salaries. Lukas baselessly claimed that this would result in men being paid less money in order to make up the difference -- literally the opposite of what was intended, which was to pay women more.
9. "Obama's America."
Finally, WSJ editor James Taranto blamed "Obama's America" for waging the "War on Men" with the sexual harassment regulations under Title IX, which he claimed unfairly police men's sexuality.
A federal agency's new preliminary report debunks the popular right-wing myth that private contracts that require people to take their complaints to an arbitrator are an effective alternative to class-action lawsuits.
Right-wing media outlets have consistently supported what are known as "forced-arbitration clauses" -- contractual provisions that often force consumers to give up their right to join a class action lawsuit and instead require them to go before an arbitrator individually, even if the amount in dispute is so small that it wouldn't make sense to pursue outside of a collective, mass action. Support on the right has grown since 2011, when the conservative majority of the Supreme Court held that such forced arbitration clauses trump consumer protection laws.
The right-wing media has relied in part on that Supreme Court ruling to dismiss criticism of forced arbitration as "unfair." For example, Ammon Simon at National Review Online has called forced arbitration clauses "especially generous towards consumers," and called class-action lawsuits "a cash cow for trial lawyers ... [that] don't usually help consumers, who are systemically under-compensated in such cases." Simon continued:
While trial lawyers would benefit from strictly limiting arbitration, consumers would suffer. ... [C]lass action lawsuits last an average of 3 years from start to completion, while arbitrations last slightly under 7 months. What's more, while consumer claims go on the backburner to trial attorney fees in class action litigation, consumers can actually be successful in arbitration, and prefer arbitration to the alternatives.
Hans von Spakovsky, also an NRO contributor and a legal fellow at the ultra-conservative Heritage Foundation, argued that forced arbitration clauses are "an efficient and fair alternative to our costly and burdensome litigation system":
Given the arbitration process's many benefits over the only real alternative -- expensive and time-consuming litigation that in many cases does more to line trial lawyers' pockets than redress consumers' injuries -- any action to curtail arbitration would only injure consumers and workers.
Simon and von Spakovsky agree that arbitration clauses provide consumers with a better chance of fair compensation than do class-action lawsuits.
In a post on National Review Online about a series of lawsuits challenging the Affordable Care Act's (ACA) contraception mandate, editor at large Jonah Goldberg misled about the mandate, how contraception actually works, and then asked why conservatives are considered the "aggressors in the culture war".
On November 26, the Supreme Court agreed to hear oral arguments in Conestoga Wood Specialties v. Sebelius and Sebelius v. Hobby Lobby Stores. Even though the plaintiffs are for-profit, secular corporations, they want to claim an unprecedented exemption from a generally applicable law -- the ACA's contraception mandate -- because the individual owners of the companies claim their religious opposition to birth control is constitutionally more significant.
Goldberg viewed this opposition as evidence of Democrats "getting deeply involved in the reproductive choices of nearly every American," arguing that the "conventional narrative" that "conservatives are obsessed with social issues" is thus unfair. Goldberg also significantly underestimated the impact a Supreme Court ruling in favor of Hobby Lobby and Conestoga would have on well-established First Amendment and corporate precedent.
From Goldberg's December 5 post:
Maybe someone can explain to me how, exactly, conservatives are the aggressors in the culture war? In the conventional narrative of American politics, conservatives are obsessed with social issues. They want to impose their values on everyone else. They want the government involved in your bedroom. Those mean right-wingers want to make "health-care choices" for women.
Now consider last week's decision by the U.S. Supreme Court to consider two cases stemming from Obamacare: Conestoga Wood Specialties v. Sebelius and Sebelius v. Hobby Lobby Stores. Democratic politicians and their fans on social media went ballistic almost instantly. That's hardly unusual these days. But what's revealing is that the talking points are all wrong.
Suddenly, the government is the hero for getting deeply involved in the reproductive choices of nearly every American, whether you want the government involved or not. The bad guy is now your boss who, according to an outraged Senator Patty Murray (D.,Wash.), would be free to keep you from everything from HIV treatment to vaccinating your children if Hobby Lobby has its way. Murray and the White House insist that every business should be compelled by law to protect its employees' "right" to "contraception" that is "free."
[B]irth-control pills really aren't the issue. Both companies suing the government under Obamacare have no objection to providing insurance plans that cover the cost of birth-control pills and other forms of contraception. What both Hobby Lobby and Conestoga Wood Specialties object to is paying for abortifacients -- drugs that terminate a pregnancy rather than prevent one. (Hobby Lobby also opposes paying for IUDs, which prevent implantation of a fertilized egg.) The distinction is simple: Contraception prevents fertilization and pregnancy. Drugs such as Plan B may terminate a pregnancy, albeit at an extremely early stage.
The plaintiffs in these cases aren't saying the government should ban abortifacients or make it impossible for their employees to buy them. All they are asking is that the people using such drugs pay for them themselves rather than force employers and co-workers to share the cost. In other words, Hobby Lobby and Conestoga Wood want such birth-control decisions to be left to individual women and their doctors. Leave the rest of us out of it.
To answer Goldberg's initial question: conservatives are generally thought of as "the aggressors in the culture war" because they have dedicated countless legislative hours to passing unconstitutional abortion laws, have attempted to confer personhood on fertilized eggs, and often voted to defund clinics like Planned Parenthood, eliminating access to crucial family-planning services. In 2012, Republicans in Virginia tried to pass a bill that would have forced women to have a transvaginal ultrasound before obtaining an abortion -- a requirement that would have violated the federal definition of rape. Most recently, congressional Republicans threatened to shut the government down due to their opposition to access to contraception.
The New York Times reported on a dangerous legal challenge to the Affordable Care Act (ACA) brought by officials in states who refuse to implement their own healthcare exchanges, which has been widely trumpeted in right-wing media. But these lawsuits are based on a far-fetched theory that the law only authorized essential tax credits in state exchanges, not federal ones, a counterintuitive claim that has been widely discredited.
Syndicated columnist and radio host Dennis Prager uncritically recited Stephen Jimenez's shoddily-reported claims that Matthew Shepard's 1998 murder wasn't an anti-gay hate crime, using the claims put forth in Jimenez's discredited book to assail the "lies" allegedly used to advance progressive goals.
In a December 3 column for National Review Online, Prager joined the chorus of right-wing praise for The Book of Matt -- a book which attempts to prove that Matthew Shepard's murder wasn't motivated by anti-gay bias. In the book, Jimenez claims that Aaron McKinney and Aaron Henderson attacked Shepard as part of a meth deal gone wrong, not because Shepard was gay. Filled with wild conjecture, questionable or anonymous sources, and cavalier dismissals of strong evidence of McKinney's homophobia, the book has nevertheless served as a rallying cry for right-wing media figures determined to undermine the LGBT movement galvanized by Shepard's death.
Prager's column continues in that same vein, indicating a stronger interest in using the book as a cudgel against progressives than actually getting to the bottom of Shepard's murder (emphasis added):
It turns out that Matthew Shepard's murder had nothing to do with his being gay.
As early as 2004, the ABC News program 20/20 broadcast (to its credit) a denial by both murderers, Aaron McKinney and Russell Henderson, that the murder had anything to do with Shepard's being gay. It was, they both claimed, a robbery gone bad.
"It was not because me and Aaron had anything against gays," Henderson told ABC.
As a result, ABC News was widely attacked by all those who had a vested interest not in truth but in maintaining the homophobia story: the liberal media, the gay-rights movement, and the lawyers for the victim's mother.
Now a book has been published, written by Stephen Jimenez, himself a gay man, that confirms the accuracy of the 2004 ABC News report. Matthew Shepard was involved in the hyperactive Wyoming meth drug culture; he was murdered over a drug deal; and his primary murderer was a bisexual who had probably slept with Shepard.
[I]t shows how powerful the left-wing media are, how they are dedicated to agendas rather than to truth, and how much of what Americans believe is shaped accordingly.
It would indeed be convenient for Jimenez's cheerleaders if only those with "a vested interest" were disputing his account of Shepard's murder. In reality, however, The Book of Matt has been condemned by Tim Newcomb, Henderson's appellate attorney, former Laramie police commander David O'Malley, and Detective Rob Debree, who said that investigators thoroughly probed the drug issue before concluding that Shepard's murder wasn't a "meth crime."
Meanwhile, despite changing his story on multiple other aspects of the case, McKinney -- a self-proclaimed "homofobick [sic]" individual -- has consistently denied knowing Shepard prior to the attack.
Given his determination to call out allegedly biased or unreliable critics, you'd think Prager would apply the same scrupulous standards of objectivity and reliability to Jimenez's sources. They include confessed meth addicts, a disbarred attorney who agreed to talk to Jimenez on the condition that he disputed the conventional understanding of Shepard's death, and one purported former lover of Shepard's - whom Newcomb revealed had apparently attempted to extract money in exchange for information on the case. But Prager simply transcribes Jimenez's arguments as the gospel truth, apparently uninterested in the sources behind them.
National Review Online Senior Editor Ramesh Ponnuru dedicated his Bloomberg View column to misleading about two unprecedented Supreme Court cases that could make it easier for for-profit, secular corporations to refuse to provide insurance coverage to its employees that includes comprehensive preventive care.
On November 26, the Supreme Court agreed to hear arguments in Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius, two cases that would allow some corporations to obtain exemptions from the contraception mandate in the Affordable Care Act (ACA). The ACA already provides exemptions and accommodations for non-profit, religiously-affiliated organizations like churches and hospitals -- but the plaintiffs in Hobby Lobby and Conestoga are for-profit businesses that sell crafts and wood cabinets, respectively.
But that didn't stop NRO's Ponnuru from complaining that the contraception mandate runs afoul of the Religious Freedom Restoration Act (RFRA) because it imposes a "substantial burden" on Hobby Lobby and Conestoga. Ponnuru insisted that corporations are well within their rights to refuse to pay for coverage of preventive care such as contraception for their employees, but didn't seem to mind that allowing corporations to dictate the personal health choices of its employees could very well infringe on those employees' religious beliefs.
From Ponnuru's December 1 editorial:
From reading the New York Times, you might think that religious conservatives had started a culture war over whether company health-insurance plans should cover contraception. What's at issue in two cases the Supreme Court has just agreed to hear, the Times editorializes, is "the assertion by private businesses and their owners of an unprecedented right to impose the owners' religious views on workers who do not share them."
That way of looking at the issue will be persuasive if your memory does not extend back two years. Up until 2012, no federal law or regulation required employers to cover contraception (or drugs that may cause abortion, which one of the cases involves). If 2011 was marked by a widespread crisis of employers' imposing their views on contraception on employees, nobody talked about it.
What's actually new here is the Obama administration's 2012 regulation requiring almost all employers to cover contraception, sterilization and drugs that may cause abortion. It issued that regulation under authority given in the Obamacare legislation.
The regulation runs afoul of the Religious Freedom Restoration Act, a Clinton-era law. That act says that the government may impose a substantial burden on the exercise of religious belief only if it's the least restrictive way to advance a compelling governmental interest. The act further says that no later law should be read to trump this protection unless it explicitly says it's doing that. The Affordable Care Act has no such language.
Is a marginal increase in access to contraception a compelling interest, and is levying steep fines on employers who refuse to provide it for religious reasons the least burdensome way to further it? It seems doubtful.
Ponnuru's characterization of these lawsuits as entirely mainstream is misleading. Although the Supreme Court held in Citizens United that corporations had the right to engage in political speech without undue government restrictions, for the Court to hold that a corporation is a "person" capable of religious belief or conscience would be a radical reimagining of both First Amendment and corporate law precedent. As David Gans of the Constitutional Accountability Center pointed out, "it is nonsensical to treat a business corporation as an actor imbued with the same rights of religious freedom as living persons. No decision of the Supreme Court has ever recognized such an absurd claim."