Lawyers in politics seem to have great difficulty understanding the law these days. First, the “constitutional lawyer who sits in the Oval Office” had his hat handed to him by the Supreme Court on a wide range of issues, and with unprecedented unanimity. Now the woman angling to succeed him, who is often described as an accomplished attorney herself, apparently can’t be bothered to familiarize herself with a case before rendering judgment on it. Hillary Clinton gets two Pinocchios from the Washington Post’s Glenn Kessler for her remarks on the Hobby Lobby case, but probably deserved two more for sheer dishonesty.
This is what Clinton said at the Aspen Ideas Festival:
“It’s very troubling that a salesclerk at Hobby Lobby who needs contraception, which is pretty expensive, is not going to get that service through her employer’s health-care plan because her employer doesn’t think she should be using contraception.”
Actually, the case doesn’t involve Hobby Lobby’s position on what its employees do. The case hinges on what Hobby Lobby has to provide to its employees as part of regulation from HHS. As Kessler points out, Hobby Lobby covers 16 of the 20 required contraception methods, but objects to four abortifacients. Hobby Lobby has never taken the position that its employees should not use contraception; in fact, as their attorney said shortly after their victory at the Supreme Court, they’d really prefer not to be part of that decision at all.
Anyone who spent even a brief period of time studying this case would know these basic facts of the Hobby Lobby challenge. A competent attorney who didn’t do even that small amount of research would know not to comment on it without first checking the facts. An attorney who’s also prepping a run for the presidency who comments on the case without knowing it is engaging in deliberate demagoguery.
Hillary Clinton isn’t alone in that effort, either. We’ve heard plenty of shrieking from the Left over the supposed setback this decision creates for women, but that’s sheer nonsense. Nothing’s changed, as I note in my column for The Fiscal Times, and the court ruled properly on the RFRA:
[O]ne cannot expect to get off the hook by simply claiming that a federal regulation impedes on one’s religious belief. Congress specifically addressed this balancing act between religious liberty and the need for regulatory authority in 1993 with the Restoration of Religious Freedom Act (RFRA), on which the Hobby Lobby case largely hinged.
Congress passed it unanimously in the House and 97-3 in the Senate after the Supreme Court’s Employment Division v Smith decision refused unemployment benefits to two Native Americans fired for having used peyote in their rituals. Religious expression should only be “substantially burdened,” Congress responded in nearly one voice, “in furtherance of a compelling governmental interest,” and then only by “the least restrictive means of furthering that compelling governmental interest.”
That applies to health decisions as well. As Justice Samuel Alito noted in his Hobby Lobby decision , other mandates for coverage meet this test, explicitly noting items such as vaccinations and blood transfusions. Blood transfusions are necessary for survival in some cases, while vaccinations are not just critical for individual health but also communal health, as thousands of studies confirm.
These examples show, though, just how silly and insubstantial the contraception and sterilization coverage mandate is in terms of compelling government interest. Contraception in almost all of its forms is inexpensive and widely available. Furthermore, although HHS considers contraception preventive medicine, it doesn’t prevent disease or block the spread of contagion, unless one considers babies a plague.
Besides, there is no crisis in accessing contraception. As noted above, the CDC’s 26-year study of unplanned pregnancies (1982-2008) shows that 99 percent of all sexually active women seeking to avoid pregnancy accessed contraception. Access to contraception is such a non-issue that the word “access” only appears once in the entire report, and that in a footnote about access to health insurance. So despite all of the shouts of doom, nothing in this decision impacts the already-universal access to contraception Americans have had for the last four decades.
Returning to Kessler, one claim of his should get a review by the fact-checker. He may have missed the reports on rulings handed down after Hobby Lobby, because he concludes by saying that it’s not clear how the decision will impact other employers who object to covering any kind of contraception:
In the specific case, the company on religious grounds objected to four of 20 possible options, leaving other possible types of contraceptives available to female employees — though not necessarily the most effective or necessary at the moment. It remains to be seen whether the lower courts will interpret the ruling as allowing some companies to institute a broader ban on coverage, so Clinton was leaping to an assumption about the impact on employees.
Actually, we have seen how the court has interpreted it. Kessler needs to amend his conclusion, but only to the extent that the Supreme Court has signaled that Hobby Lobby allows for a broad conscience exemption. In all of those cases, though, the status quo has remained constant — and there still is no access crisis in contraception in the US.