In reporting on the recent Amtrak derailment near Philadelphia that killed eight people and injured up to 200 others, broadcast evening news programs and the Sunday morning political talk shows have largely ignored an outdated federal law that could deny financial compensation to victims and their families.
After the horrific Amtrak passenger train crash on May 12, much of the media coverage has focused on the technical causes of the accident and whether increased infrastructure spending might prevent future tragedies.
But a Media Matters analysis of evening news broadcasts and Sunday shows' coverage of the derailment indicates that the major networks have largely ignored how the victims of this crash might be denied financial compensation from Amtrak that will adequately cover their medical expenses going forward. Because of a 1997 federal law that limits the amount of money the victims can recover for their injuries to $200 million, many of the victims -- and the families of those who died -- may get stuck trying to pay for the costs associated with the crash out of their own pockets.
Only the May 17 edition of ABC News' This Week briefly mentioned the outdated law, in a segment with ABC's Chief Legal Affairs Anchor Dan Abrams. As Abrams explained, the $200 million cap is not per victim, but the total amount that can be paid out per incident, regardless of the number of fatalities or extent of survivor injuries:
Fox News is falsely claiming that a new study concerning the survival rate of premature newborns will have an outsized impact on abortion law.
A recent study published in the New England Journal of Medicine (NEJM) suggests that an extremely small number of premature babies born at 22 weeks can survive outside the womb with extensive medical intervention. The New York Times reported that, according to the study, "a vast majority died or suffered serious health issues" despite these best efforts. Because the Supreme Court has held that states cannot ban abortion prior to fetal viability, many pro-life advocates and now Fox News are already suggesting that the current medical standard of viability be lowered to 22 weeks - a conclusion the study does not support.
In fact, not only does this claim misrepresent the science, it also misinterprets how the Supreme Court has defined "viability" in its rulings on reproductive rights.
Although the overwhelming medical consensus is that viability is generally 24 weeks, and most states that regulate abortion use the 24-week date as a cut-off, the Supreme Court does not use this as a bright-line rule. But on the May 7 edition of Fox News' Happening Now, co-host Jenna Lee falsely claimed that it does, and suggested that the new study would accordingly upset the Supreme Court's rulings on reproductive rights. In an interview with Dr. Carla Simonian, Lee erroneously claimed that Roe v. Wade had set "28 weeks as viable has been a marker not only in the medical community but also in the legal community," and that in the court's 1992 ruling in Planned Parenthood v. Casey, the 28 week viability date "became 24 weeks."
Based on her misunderstanding of these decisions, Lee went on to wonder whether 22 weeks would become a new legal standard for viability:
In reality, the Supreme Court has never set viability at a specific week -- rather, it has acknowledged that viability is different for every pregnancy and is determined on a case-by-case basis by a woman and her doctor. The court specifically noted in Colautti v. Franklin that viability "may differ with each pregnancy" and that it "is reached when, in the judgment of the attending physician on the particular case before him, there is a reasonable likelihood of the fetus' sustained survival outside the womb."
Moreover, in Casey, the court held that a woman has the right to terminate her pregnancy before viability without interference from the state, but did not definitively set viability at 24 weeks or any other date. In short, the Supreme Court still defers to medical science, which is why Fox News' question, "Are we looking at even 22 weeks?" as the new legal date of viability is not only unsupported by the NEJM study, it also incorrectly explained how the constitutional right to abortion is protected.
While conservative politicians and right-wing media may attempt to exploit this study to promote more archaic restrictions on reproductive rights, the Supreme Court is not bound by its findings to revisit its reproductive rights jurisprudence. Life-saving advancements in medical science and technology are good news, but under current law, the point of viability continues to vary, depending on the pregnancy.
The Wall Street Journal editorial board is siding with four teachers in California who are suing their unions, claiming "coercion" and "political extortion" because "critical benefits" are being withheld from non-member employees who don't pay for them, but failed to mention the challenge is seeking to overturn decades-old precedent.
In April, four teachers filed suit against the California Teachers' Association and several other teachers' unions, arguing that their denial of certain benefits to non-members was unconstitutional, despite Supreme Court precedent to the contrary. The teachers had refused to join their representative unions because they disagree with the groups' "political activity," which is funded by members who pay full membership dues. While even non-members are required to pay some dues to the union -- a reduced share known as "agency" or "fair share fees" -- that money cannot be used for political activities.
In a May 4 editorial, the Journal sided with the suing teachers, calling their lawsuit an opportunity "to end the political extortion" by unions, despite the fact that the Supreme Court has upheld the constitutionality of agency fees. The editorial took special exception to the fact that non-members aren't covered by a disability insurance program that provides paid maternity leave, claiming that it is unfair for teachers to have to "ante up to receive substantial employment benefits":
Teachers who disagree with the union's agenda can opt out of membership and not pay dues. Trouble is, they then must forfeit material benefits including legal representation in workplace disputes as well as union insurance that is necessary for disability and maternity leave. They also cannot vote on collective-bargaining agreements that govern the terms and conditions of their employment.
The coercion is particularly insidious in the case of maternity leave, which the union does not collectively bargain. Teachers who want to take leaves of absence are guaranteed full-time pay only for their unused sick days. After that, their pay gets docked substantially. So if new mothers want to take a couple of months off, they in effect must either join the union -- and finance its political advocacy -- or take a huge pay cut.
Imagine if a bank made maternity leave and flex time available only to workers who contribute to a Republican political action committee. This is essentially what the union public-school monopoly does: restrict critical benefits to those who support their political spending.
Conservative Supreme Court Justice Antonin Scalia is again raising conservative media talking points in court, advancing the debunked idea that the definition of marriage has remained unchanged for a "millennia."
On April 28, the Supreme Court heard oral arguments in Obergefell v. Hodges, a case that will determine whether state bans on same-sex marriage are unconstitutional. During arguments, the conservative justices, including Scalia, expressed concern about "redefining" the institution of marriage to include gay couples. In one exchange with Mary Bonauto, the lawyer representing the same-sex plaintiffs, Scalia wondered if it was appropriate for the court to "decide it for this society" since marriage has applied only to heterosexual couples "for millennia."
The idea that the definition of marriage has had a fixed tradition or definition "for millennia" is untrue, although right-wing media have pushed that notion in varying forms for years -- and Scalia's propensity for embracing right-wing talking points is well-known. In 2012, he repeated the idea that if the Affordable Care Act was upheld, the federal government might be allowed to force Americans to buy broccoli -- an argument borrowed from Rush Limbaugh's talk show. Earlier this year, Scalia claimed that if the court struck down the availability of health care subsidies, Congress would move quickly to fix the problem -- apparently convinced by right-wing media's false claims that Senate Republicans had a viable back-up plan if the court hobbled the Affordable Care Act. When the Supreme Court struck down Arizona's notorious anti-immigrant racial profiling law in 2012, Scalia dispensed with legal arguments to instead attack the unrelated deferred action program for DREAMers and scaremonger that the "state's citizens feel themselves under siege by large numbers of illegal immigrants." Professor Jeffrey Rosen of George Washington University said Scalia's commentary in that case "sound[ed] more like a conservative blogger or Fox News pundit than a justice."
National Review Online is calling on the Supreme Court to uphold states' rights to ban same-sex marriage because, in its view, recognizing marriage equality would redefine the institution to favor lesser "emotional unions" and adopted children over married procreation.
On April 28, the Supreme Court heard oral arguments in Obergefell v. Hodges, a case that could finally allow same-sex couples to marry in every state or, at minimum, require states that ban same-sex marriage to recognize the legality of same-sex marriages performed legally elsewhere. During arguments, Mary Bonauto, the lawyer representing the same-sex couples challenging state marriage bans, asserted that such bans "contravene the basic constitutional commitment to equal dignity" and that "the abiding purpose of the 14th Amendment is to preclude relegating classes of persons to second-tier status."
Several justices were receptive to Bonauto's argument, including conservative Justice Anthony Kennedy, who is widely expected to cast the deciding vote in the case.
But NRO is less convinced. In an April 28 editorial, the editors called on the justices to "refrain from taking [the] reckless step" of recognizing that the fundamental right to marry should be extended to gay couples. The editorial also rejected the idea that gay couples who can't get married are routinely denied the same dignity that "traditional" married couples enjoy, and argued that the "older view" of marriage -- which prioritizes "the type of sexual behavior that often gives rise to children" -- is "rationally superior to the newer one":
An older view of marriage has steadily been losing ground to a newer one, and that process began long before the debate over same-sex couples. On the older understanding, society and, to a lesser extent, the government needed to shape sexual behavior -- specifically, the type of sexual behavior that often gives rise to children -- to promote the well-being of those children. On the newer understanding, marriage is primarily an emotional union of adults with an incidental connection to procreation and children.
We think the older view is not only unbigoted, but rationally superior to the newer one. Supporters of the older view have often said that it offers a sure ground for resisting polygamy while the newer one does not. But perhaps the more telling point is that the newer view does not offer any strong rationale for having a social institution of marriage in the first place, let alone a government-backed one.
Fox News' Special Report cherry-picked Justice Antonin Scalia's religious freedom concerns from the Supreme Court's oral arguments on constitutional protections for same-sex marriage to question whether clergy may "be required to conduct same-sex marriages." But this selective reporting ignores the fact that Scalia's line of questioning was immediately debunked by his fellow justices as well as the pro-marriage equality lawyer.
On April 28, the court heard landmark arguments in Obergefell v. Hodges, a case that will decide whether the U.S. Constitution forbids states from banning same-sex marriages, or at least requires them to recognize same-sex marriages performed in states where it's legal.
During the April 28 edition of Fox News' Special Report, anchor Bret Baier highlighted a dubious line of questioning between Scalia and Mary Bonauto, the lawyer representing the same-sex couples, that suggested a ruling in favor of same-sex marriage would require clergy with religious objections to perform those ceremonies. Baier reiterated Scalia's question to The Weekly Standard's Stephen Hayes, who agreed and argued that a ruling in favor of marriage equality would leave religious liberties vulnerable:
BAIER: There's one more thing. If states license ministers to conduct marriages, would those ministers -- if it is constitutional -- then be required to conduct same-sex marriages?
HAYES: Right, and then you go to the religious liberty argument. I mean, this is one area where I think conservatives are shifting their focus now, in a sense almost conceding that the gay marriage debate for all intents and purposes in the political realm is over, but can they sort of protect those religious liberties that, you know, certainly I would argue that the founders intended.
Bill O'Reilly has called on Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan to recuse themselves from the upcoming marriage equality cases -- even though neither justice has confirmed how they will rule. But in 2006, the Fox News host took the opposite position when it came to Justice Antonin Scalia, despite the fact that O'Reilly admitted a speech the conservative justice gave on a pending case made it "obvious" how he would vote.
On the April 21 edition of The O'Reilly Factor, O'Reilly complained that, because Justices Ginsburg and Kagan had officiated four same-sex marriages, "these ladies have to recuse themselves." Even though neither justice has spoken specifically on the merits of the same-sex marriage cases -- a situation that could trigger a need for a recusal -- O'Reilly nevertheless claimed that they were "not impartial" due to their participation in same-sex wedding ceremonies, and that their refusal to step down "is what unlimited power looks like." The following night O'Reilly doubled down at the end of his show, and described the logic of a viewer who agreed with him as "impeccable," declaring the liberal justices' acts a "blatant conflict of interest."
But O'Reilly felt quite differently about the standards of recusal in 2006, when he claimed that only the "nutty left" wanted Scalia to recuse himself in Hamdan v. Rumseld, a case brought by a Guantánamo Bay prisoner who argued that his detention after 9/11 violated his rights under military and international law.
With the Senate poised to finally vote on Loretta Lynch, President Obama's widely praised pick to replace Eric Holder as attorney general of the United States, National Review Online is repeating tired and debunked excuses as it calls on Senate Republicans to "defeat" her nomination.
After waiting far longer than almost every other attorney general nominee in history, Senate Republicans will finally bring up Lynch's confirmation for a vote on April 23. Although there are no legitimate problems with the highly-qualified Lynch herself, her confirmation was still held up for months by the GOP as they blocked an up-or-down vote, even when it was apparent she could be confirmed. This obstruction -- fueled in part by right-wing media smears -- continued interminably despite the fact that Senate Majority Leader Mitch McConnell (R-KY) promised in November that Lynch would "receive fair consideration by the Senate."
Senate Republicans, as well as right-wing media, have struggled mightily to find a substantive reason to oppose Lynch's nomination. After a few false starts, they finally settled on the fact that Lynch -- along with hundreds of legal experts as well as the Justice Department's Office of Legal Counsel -- believes that the president's executive actions on immigration are "reasonable," and has publicly said so.
NRO in particular has been vocal -- and inaccurate -- in its disdain for Lynch, and its latest editorial is more of the same. In an April 22 post, the editors complained that Lynch was no different than the "wildly partisan" Holder, and that "Republicans should vote her down" because it "would be a forceful rebuke to the president." The editorial went on to falsely claim that the president's immigration actions were illegal because they "offer positive benefits" to undocumented immigrants:
But there is little indication that Ms. Lynch would be much better -- and, at a minimum, the top law-enforcement officer should be committed to the law. Yet during her confirmation hearings before the Senate Judiciary Committee, Ms. Lynch endorsed the president's lawless November executive amnesty, and indicated that she had no concerns about the precedent it sets for future abuses of power by this or other presidents.
That the legal argument for the president's amnesty is weak is understating it. Unlike the previous amnesties he cites as precedent, the president's Deferred Action for Parental Accountability, or DAPA, is not responding to a particular crisis but is simply the enactment by fiat of his own political wishes. Furthermore, unlike those previous amnesties, the president's offers positive benefits (e.g., work permits) to millions of Americans in the country illegally. Even the administration admits that the order must be executed on a "case-by-case basis," but the number of affected individuals -- somewhere around 5 million -- shows it is simply a new dispensation for an entire class of immigrants. And, of course, for years the president himself maintained that such a sweeping act would be outside his constitutional authority. Ms. Lynch apparently is bothered by none of this.
Recent news reports on Republican presidential candidates' current support for pre-viability bans on abortion after 20 weeks have failed to mention that such bans are clearly unconstitutional, and have been repeatedly struck down as such by the courts.
It's no secret that the likely candidates for the Republican 2016 presidential nomination are extremely anti-choice. Sen. Rand Paul (R-KY) was recently in the news for his sponsorship of "personhood" bills that would legally define life at conception, rendering abortion and some forms of birth control the criminal equivalent of murder -- perhaps even without exceptions for rape or incest. With less attention, Paul's potential primary opponents have also staked out far-right positions on American women's access to abortion, and recent reporting indicates their consensus position is coalescing around pre-viability 20-week abortion bans. In addition to Paul, former Florida Governor Jeb Bush, New Jersey Governor Chris Christie, Sen. Ted Cruz (R-TX), and Sen. Marco Rubio (R-FL) are all reportedly on board with these bans, despite the fact they flout decades of Supreme Court precedent protecting the constitutional right to abortion.
In reporting on these candidates' current lockstep for bans on abortion, however, mainstream media outlets are neglecting to mention that these 20-week measures are blatantly unconstitutional -- despite the fact that some of these same candidates repeatedly emphasize their fidelity to the "rule of law" and the U.S. Constitution.
In a recent article about Wisconsin Gov. Scott Walker (R), who has yet to officially announce his candidacy, The New York Times noted that Walker's newfound support for a 20-week abortion ban was a "shift in emphasis and tone," but never discussed the constitutional flaw in such bans. USA Today, The Boston Globe, and The Los Angeles Times omitted the same fact in their political coverage of Walker's position on reproductive rights, with the LA Times choosing to describe a 20-week ban in terms of a "sharper-edged tone" rather than the unconstitutional measure it is.
The trend culminated in an April 17 Politico article that called 20-week abortion bans the "new litmus test" for all Republican candidates. While Politico detailed how anti-choice groups are lobbying Republicans to "make 20-week abortion ban[s] a centerpiece of their campaigns," the article never once noted that those bans are unconstitutional.
In its analysis of an unprecedented change to how the chief justice of the Wisconsin Supreme Court is selected, The Wall Street Journal ignored the significant financial contributions a right-wing group made in support of the move, which would strengthen conservative control of the court before it examines possible illegal campaign coordination between that same group and Wisconsin Gov. Scott Walker (R). Instead, the editorial board focused on the fact that the current chief justice has a lawyer who is on the board of directors of a judicial election reform group founded by George Soros.
On April 7, voters in Wisconsin approved a constitutional amendment that changed how the state supreme court picks its chief justice. For the past 126 years, the longest serving justice on the bench was automatically selected to act as chief justice. After passage of the new amendment, which was supported by Republican lawmakers in the state and boosted by hundreds of thousands of dollars in independent spending from conservative groups, the court itself will now elect which justice they want to serve as chief.
The conservative majority of the court is expected to replace current Chief Justice Shirley Abrahamson, a liberal, with one of their own.
But in an April 9 editorial, the Journal failed to mention the conservative support for the amendment and the influence outside spending had on the outcome of the vote, and instead attacked Abrahamson for filing a lawsuit challenging the constitutionality of the new amendment. The editorial went on to add that her "lawyer is Robert Peck, a member of the board of directors of George Soros's Justice at Stake. The group wants to end state judicial elections and replace them with nominating commissions that allow state bar associations to hand-pick judges."