The Wall Street Journal took a stand against fair treatment for pregnant workers, complaining that the Equal Employment Opportunity Commission's (EEOC) new guidelines designed to fight pregnancy discrimination despite conservative Supreme Court opinions holding discrimination against pregnant women is not sex discrimination was a "radical" reading of federal law.
Last week, the EEOC issued new guidelines to employers in an effort to curb increasing incidents of pregnancy discrimination in the workplace -- the first time in 30 years the agency had updated its guidelines regarding fair treatment of pregnant employees. One of these new guidelines interpreted the Americans with Disabilities Act (ADA) to include reasonable accommodations for "pregnancy-related impairments," which can include serious ailments like anemia, gestational diabetes, and abnormal heart rhythms, among others.
But in a July 27 editorial, the Journal argued that protections provided by the ADA should be reserved only for the "truly disabled," not women who are disabled due to medical conditions caused by their pregnancies. The editorial also ignored the reality of pregnancy discrimination in the workplace, and claimed that the EEOC's comprehensive new guidance was a "radical legal interpretation" of the ADA that served no purpose other than to provide a "launching pad for trial lawyers." It went on to argue that the guidance was unnecessary given the fact that "pregnancy is not unprotected under federal law," without mentioning that these protections were a direct response to conservative case law that refused to treat pregnancy as a sex-based classification under federal law:
Even after the 2008 amendments, the ADA at no point defines pregnancy as a "disability." To end-run this fact, the agency discovers pregnancy's "impairments." The EEOC's guidelines argue, "Although pregnancy itself is not a disability, impairments related to pregnancy can be disabilities if they substantially limit one or more major life activities." Morning sickness, for example, would become a qualifying impairment under the ADA.
Thus the EEOC is piling one radical legal interpretation (discarding the ADA's clear intent to help the truly disabled) upon another (granting protections to pregnant women, who aren't covered under the ADA).
Pregnancy is not unprotected under federal law. The 1964 Civil Rights Act protects workers from discrimination on the basis of "race, color, religion, sex, or national origin." And the 1978 Pregnancy Discrimination Act amended that law to protect, yes, pregnant women.
Anyone who reads the text of the EEOC guidance can see the rationale behind yet another display of Obama executive-branch muscle. The rules' imprecision is a launching pad for trial lawyers, a primary source of grateful Democratic campaign money. And Valerie Jarrett's CNN piece makes clear the initiative is another politicized front in the "war on women."
Ms. Jarrett says the guidelines will help employers "understand their obligations." With the most important being to hire more lawyers and fewer employees, of any sex.
The Wall Street Journal portrayed the D.C. Circuit's radical decision nullifying tax credits for consumers on the federal exchanges of the Affordable Care Act (ACA) as a check on President Obama's "penchant for treating laws as unlimited grants of power," all while ignoring the fact that multiple federal courts -- including the Supreme Court itself -- have upheld or acknowledged the very same tax breaks that the Journal now condemns as "illegitimate."
On July 22, the D.C. Circuit Court of Appeals issued its split decision in Halbig v. Burwell, one of many lawsuits applauded by conservatives that have challenged the ACA since President Obama signed it into law in 2010. Three of these lawsuits are based on the same legal arguments of Halbig, and the Fourth Circuit Court of Appeals rejected a Halbig-like challenge and upheld the validity of the tax credits on the same day Halbig was decided. The plaintiffs in these cases, relying on a legal theory that has long been a favorite of right-wing media, argued that, somehow, a law drafted to make insurance affordable for all Americans actually denies crucial tax credits for the 5 million consumers who purchased insurance through the federal exchange because their home states refused to set up their own health insurance sites.
Celebrating the majority decision in Halbig by calling the case a "remedial civics lesson" for the Obama administration, the Journal misleadingly claimed that the "plain statutory language of ObamaCare repeatedly stipulates" that the tax credits are only available for state exchanges. The editorial board largely ignored the contradictory ruling from the Fourth Circuit and the vast majority of experts knowledgeable with the law and the basics of statutory construction that took no issue with the administration's commonsense execution of the ACA's tax credits:
The courts usually defer to executive interpretation when statutes are ambiguous, but Mr. Obama's lawyers argued that the law unambiguously means the opposite of the words its drafters used. Judge Thomas Griffith knocked this argument away by noting in his ruling that, "After all, the federal government is not a 'State,'" and therefore "a federal Exchange is not an 'Exchange established by the State.'"
The White House also argued that the court should ignore the law's literal words because Congress intended all along to subsidize everybody, calling the contrary conclusion an "absurd result." Yet this is merely ex post facto regret for the recklessness and improvisation of the way ObamaCare became law, when no trick was too dirty after Democrats lost their 60-vote Senate supermajority. Nancy Pelosi said we had to pass the bill to find out what's in it. Now we know.
Fox News was quick to celebrate a federal appellate court's split decision striking down a crucial part of the Affordable Care Act (ACA), even though that ruling was almost immediately rebuked by the Fourth Circuit Court of Appeals, consistent with the decisions of two other federal courts and the widespread opinion of legal experts.
On July 22, the D.C. Circuit Court of Appeals issued its decision in Halbig v. Burwell, with the two Republican appointees on the three-judge panel holding that a provision of the ACA counterintuitively makes health insurance unaffordable for millions of Americans by prohibiting the IRS from providing tax credits to consumers who live in states that refused to set up health insurance exchanges. Those consumers must instead buy insurance from the federal exchange website, and many had relied on the tax credits to reduce the cost of insurance. The legal theory behind this lawsuit -- that the "Affordable Care Act" would somehow decline to provide affordable care to its intended beneficiaries -- has been hyped by right-wing media since the lawsuit was filed. National Review Online called the suit "ingenious," and Washington Post columnist George Will claimed that the IRS's clarification that tax credits are available in both state and federally-run health care exchanges was an example of the agency's "breezy indifference to legality."
Fox News immediately jumped on board with the two Republican judges' validation of this right-wing legal challenge, despite the dissent's warning that "this case is about Appellants' not-so-veiled attempt to gut" the ACA rather than sound statutory interpretation.
On the July 22 edition of Outnumbered, the panel accused the Obama administration of "ignoring the ruling of the D.C. Circuit" by announcing that it would unremarkably continue to provide the subsidies while the case was appealed, but still complained about the cost of premiums that will go up if subsidies are eliminated. Co-host Harris Faulkner complained that the ruling "reminds me of the infamous quote, 'if you like your doctor, you can keep it'" since consumers may not be able to obtain cost-saving tax subsidies in the wake of the Halbig decision. Neither Faulkner, nor any of her co-hosts, mentioned the right-wing origins of this suit -- or the fact that the express purpose of Halbig and other cases like it, was to "stop the Obama health care law" by making it too expensive for consumers to purchase without tax credits.
Conservative media are condemning President Barack Obama's executive order prohibiting federal contractors from engaging in anti-LGBT discrimination, framing the order as an assault on religious liberty, pushing discredited arguments to claim this discrimination is legally insignificant and asserting that anti-LGBT workplace bias isn't a real problem.
On July 21, President Obama signed an executive order that prohibits federal contractors from discriminating against their employees on the basis of sexual orientation or gender identity. Despite pressure from some conservatives, the order did not include a broad exemption for religiously-affiliated organizations to engage in such discrimination, instead re-affirming a Bush II-era exemption that will allow a contracted "religious corporation, association, educational institution, or society" to continue to limit its hires to employees of their preferred religion. Prior to the issuing of the order, Executive Order 11246, more than 100 faith leaders signed a letter warning that the rejected religious exemptions would "open a Pandora's box inviting other forms of discrimination."
In a July 22 editorial, National Review Online complained that the order was unnecessary due to "changing social attitudes and the pressure of market competition" and argued that "the order addresses a small and shrinking problem of discrimination at a cost to religious liberty."
Ryan T. Anderson, a fellow at the conservative Heritage Foundation and a writer for the Daily Signal, Heritage's news site, echoed NRO's objections. Anderson flatly rejected any comparison between anti-gay discrimination and that based on sex or race and referred to sexual orientation and gender identity as "voluntary behaviors":
Federal policy on government contracts should not seek to enforce monolithic liberal secularism. Today's order undermines our nation's commitment to reasonable pluralism and reasonable diversity. All citizens and the groups they form should be free to exist and participate in relevant government programs according to their reasonable beliefs. The federal government should not use the tax-code and government contracting to reshape civil society on controversial moral issues that have nothing to do with the federal contract at stake.
[S]exual orientation and gender identity are unclear, ambiguous terms. They can refer to voluntary behaviors as well as thoughts and inclinations, and it is reasonable for employers to make distinctions based on actions. By contrast, "race" and "sex" clearly refer to traits, and in the overwhelming majority of cases, these traits (unlike voluntary behaviors) do not affect fitness for any job.
Today's executive order bans decisions based on moral views common to the Abrahamic faith traditions and to great thinkers from Plato to Kant as unjust discrimination. Whether by religion, reason, or experience, many people of goodwill believe that our bodies are an essential part of who we are. On this view, maleness and femaleness are not arbitrary constructs but objective ways of being human to be valued and affirmed, not rejected or altered. Thus, our sexual embodiment as male and female goes to the heart of what marriage is: a union of sexually complementary spouses. Today's order deems such judgments irrational and unlawful.
Washington Post columnist and Fox News contributor Charles Krauthammer attacked the Women's Health Protection Act (WHPA), a newly proposed law that would protect the constitutional right to obtain an abortion, by claiming the federal government has no business legislating reproductive health services -- despite the fact he had previously supported a federal law passed by Republicans that banned a rare late-term abortion procedure.
On July 15, the Senate Judiciary Committee held a hearing on WHPA, a proposed bill introduced by Sen. Richard Blumenthal (D-CT) that could help ensure access to reproductive health services for women by preventing states from passing uniquely and possibly unconstitutionally restrictive abortion legislation. Since 2010, state legislatures have aggressively proposed and enacted a wave of anti-abortion laws, known as TRAP laws, under the guise of protecting women's health. In reality, these laws impose significant burdens on abortion providers by unnecessarily requiring doctors to obtain admitting privileges at local hospitals as well as mandating clinics to comply with seemingly arbitrary "safety" rules and building code provisions. The Women's Health Protection Act would bring an end to these constitutionally-suspect laws by prohibiting states from passing anti-abortion legislation that is any more restrictive than laws that regulate comparable outpatient medical procedures.
Fox News was quick to attack the bill, with host Bill O'Reilly wondering if the senators who proposed it were "executioners." Kelly File host Megyn Kelly was also critical of the legislation, claiming that it would "open the door on late term abortions ... not just to save the mother's life, but to save the mother's health." Kelly went on to invoke the assassination of Kansas abortion provider Dr. George Tiller after suggesting that women had "abused" the health exception provisions of late-term abortion bans.
On the July 15 edition of Fox's Special Report with Bret Baier, Krauthammer argued that, even if the bill passes, "there is no way it would survive constitutional scrutiny because it is such a violation of federalism. This is not the federal government's purview. It belongs to the states."
The D.C. Circuit is expected to rule soon in Halbig v. Burwell, a lawsuit based on a fringe legal theory that could gut the Affordable Care Act (ACA) by eliminating federal exchange tax credits that significantly reduce the cost of private health insurance. Although this lawsuit has already been dismissed by legal experts and judges as meritless, right-wing media continue to misrepresent both the law and consequences surrounding Halbig.
Right-wing media labeled the Environmental Protection Agency's (EPA) plan to garnish the wages of polluters who have failed to pay their fines a "power grab," even though the agency is acting with authority granted to it by decades-old federal law that is already used by 30 other federal agencies.
On July 2, the EPA announced that it would implement a provision of the Debt Collection Improvement Act that would allow the agency to collect delinquent debts from polluters by garnishing their wages without first obtaining a court order. This law, which was approved by an overwhelming majority in both houses of Congress and signed into law in 1996, is applicable not just to the EPA but all federal agencies. According to the text of the law and Department of the Treasury guidelines, all federal agencies who collect delinquent debts can "collect money from a debtor's disposable pay by means of administrative wage garnishment to satisfy delinquent nontax debt" without going to the courts first.
Right-wing media outlets like The Washington Times were quick to accuse the EPA of "flexing its regulatory muscle under President Obama" to "unilaterally garnish the paychecks of those accused of violating its rules," because the EPA's proposed rule would no longer require the agency to "obtain a court judgment before garnishing non-Federal wages." The Times framed the announcement as an EPA "power grab," even though the report later pointed out that "every federal agency has the authority to conduct administrative wage garnishment." Fox News was similarly outraged over the EPA's announcement, with Townhall.com news editor Katie Pavlich appearing on The Kelly File to claim that "the EPA now is acting as judge, jury, and executioner" by attempting to adopt the wage garnishment rule.
But Fox's senior judicial analyst, Judge Andrew Napolitano, took it even further on the July 10 edition of Fox & Friends. Napolitano complained that the EPA did not have the authority to garnish wages without a court order because "Congress never authorized it. Congress couldn't authorize it. It blatantly violates the Constitution." Napolitano went on to claim that the EPA's proposed plan was "not legal" because the rule didn't protect debtors' "right to a hearing," and that it was "the president's people" who were behind the rule change:
The Wall Street Journal downplayed a "rare" and "extreme" Supreme Court order that could make it even more difficult for women to obtain contraceptive coverage in the wake of the Hobby Lobby decision, arguing that Justice Sonia Sotomayor "may come to regret her furious dissent" from the ruling.
On June 30, the conservative justices of the Supreme Court held in Burwell v. Hobby Lobby that the chain craft store was exempt from a provision in the Affordable Care Act (ACA) that requires employer-provided health insurance plans to cover preventive health care services, including birth control. The majority opinion, helmed by Justice Samuel Alito, suggested that the government offer for-profit, secular corporations like Hobby Lobby the same accommodation that exempts religiously-affiliated non-profits from the birth control requirement. In order for such non-profits to take advantage of this exemption, they must sign a self-certification form that states their moral objection to birth control, which allows their insurance companies to provide the medications to employees at no additional cost.
But the Court, not to mention right-wing media outlets, ignored the flaw in this plan -- that the religious accommodation is also being challenged as an illegal burden on religious freedom. Wheaton College, a Christian school in Illinois, is one of the challengers arguing that signing the exemption form "makes it complicit in grave moral evil" because the college "sincerely believes" that signing will "enable the flow of abortion-inducing drugs." On July 3, the Supreme Court issued an emergency injunction in Wheaton's favor, excusing the college from signing the exemption form until after its lawsuit is heard by the lower courts. Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan, dissented from the order, writing that "those who are bound by our decisions usually believe they can take us at our word. Not so today. ... [Granting the injunction] evinces disregard for even the newest of this Court's precedents and undermines confidence in this institution."
In a July 6 editorial, the Journal dismissed the significance of the injunction, and called Sotomayor's dissent an "overreaction":
Our guess is that Supreme Court Justice Sonia Sotomayor may come to regret her furious dissent last week to a simple Court order granting a temporary religious liberty reprieve to Wheaton College from having to obey ObamaCare's contraception mandate. She and the two other female Justices accused the Court's majority of all sorts of legal offenses, not least dishonesty.
Wheaton is challenging that accommodation as too restrictive, but the Court did not rule on the merits last week. All it did was grant a reprieve from having to obey the mandate while the case is being heard. This says little about how the Court might eventually rule, notwithstanding Justice Sotomayor's angry implication. The reprieve will also not deny any reproductive services to anyone.
Justice Sotomayor suggested the majority had harmed the Court's reputation, but it seems to us that her overreaction did far more to make the Justices a political target.
On June 15, the United States apprehended the individual suspected of leading the terrorist attack on the American diplomatic compound in Benghazi, Libya, transferred him to a U.S. naval ship, and ultimately arraigned him in federal court in Washington, D.C. on June 28. Since his capture, right-wing media have repeatedly complained that the suspect was not entitled to Miranda warnings or due process.
Fox News is minimizing the radical nature of the Supreme Court's decision in Hobby Lobby, framing it as narrowly-tailored and claiming that the federal government "will end up paying" for the four contraceptives that the chain store objected to. However, Fox is ignoring the fact that companies are challenging all 20 contraceptives covered under the Affordable Care Act (ACA) and that one way the conservative majority suggested the government could bridge the gap in coverage -- providing the same opt-out accommodation to for-profits that it provides to religiously-affiliated non-profits -- is already being challenged in the lower courts.
On June 30, the Supreme Court ruled in Burwell v. Hobby Lobby, holding that for-profit, secular corporations are exempt from a provision in the ACA that requires employer-sponsored health insurance plans to cover comprehensive preventive health services, including contraception. The religious owners of Hobby Lobby objected to providing coverage for certain forms of birth control, including emergency contraception and intrauterine devices, because they erroneously believe that these medications cause abortions. For the all-male conservative majority on the Court, it was enough that the owners "sincerely believed" this scientifically inaccurate information.
Right-wing media immediately celebrated the Hobby Lobby decision, which adopted many of their favorite myths about religious freedom and contraception. Fox News in particular was supportive of the Court's supposedly "narrow ruling," with contributor Laura Ingraham claiming that women who worked at companies "like Hobby Lobby" who were upset about the decision were overreacting and "had really bad cases of the vapors over this case." A panel discussion on the June 30 edition of Fox's On the Record with Greta Van Susteren also downplayed the significance of the case, with Weekly Standard senior writer Stephen Hayes stating that he didn't think the case would "have a huge impact" because "the Court very carefully narrowed this case to apply basically to the facts presented." A.B. Stoddard, associate editor of The Hill, agreed with Hayes and claimed that the case was "narrowly-tailored," arguing that "the government will end up paying for these [forms of contraception] anyway." Fox News host Megyn Kelly went the furthest on The O'Reilly Factor, claiming reproductive rights advocate Sandra Fluke -- who warned the decision could apply to all contraception -- "doesn't know what she is talking about."