USA Today allowed a deeply misleading op-ed to endorse the conservative plaintiffs challenging the Affordable Care Act's "contraceptive mandate" before the Supreme Court in Sebelius v. Hobby Lobby, without disclosing the author's professional connections to Hobby Lobby's owners.
On March 23, USA Today published an opinion piece by Ken Starr, former Clinton-era independent counsel and current president of Baylor University, arguing in favor of Hobby Lobby, the for-profit, secular corporation currently challenging the availability of women's preventive services in health insurance under the ACA. And yet USA Today did not disclose the fact that as part of its religious mission, Baylor has a professional relationship with the owners of Hobby Lobby.
Baylor explained its partnership with the Green family, Hobby Lobby's founding owners, in its alumni magazine:
Over the past few years, the Green family has become involved with the university through Baylor's Institute for Studies of Religion (ISR) and the Green Scholars Initiative (GSI). A partnership with the family has established Baylor as a major research partner and an academic home for the GSI's primary undergraduate program. Baylor plays a leadership role in providing undergraduate and graduate coursework and research.
The website of the Green Scholars Initiative confirms this close relationship between the Greens and Baylor.
This professional connection between Hobby Lobby and the author of an op-ed supporting the business' position before the Supreme Court should have been disclosed by USA Today, especially in light of Starr's extremely biased explanation of the case and outright inaccuracies. From his op-ed:
At issue is whether - due to the Greens' deeply held religious objections - the Hobby Lobby owners have an enforceable freedom-of-conscience right not to provide several contraceptive methods (four out of the 20 ACA-required methods) to the crafts company's employees. The Supreme Court will hear oral argument in this closely watched case on March 25.
Had the Greens not incorporated Hobby Lobby, they would likely win the case hands down and leave the Supreme Court's marble palace with a federally granted exemption from Obamacare's sweeping regulations.
To the Greens, all five of whom are devout evangelical Christians, requiring the Hobby Lobby employee benefits plan to include four contraceptive methods which they view (with substantial empirical support) as abortifacients is morally repugnant. Their religious freedom claim carried the day in the federal Court of Appeals in Denver, but the Obama Administration has fought the case all the way to the nation's highest court.
At first blush, the government's argument seems plausible. How can, say, General Motors or Intel be seen as exercising freedom of conscience? But Congress itself provided the counter-intuitive answer in yet another part of federal law that by its terms extends RFRA's coverage to any individual or entity - including for-profit corporations.
The paper allowed Starr to prop up the falsehood that the contraceptives the Greens find objectionable are "abortifacients," claiming that there is "substantial empirical support" for the position. In fact, as has been repeatedly explained by medical and public health experts, the overwhelming empirical data has shown that the contraceptives challenged are not abortifacients.
In fact, USA Today could look to its own reporting on this issue to debunk Starr's false characterization of these challenged forms of birth control. The paper previously quoted an expert for the American Academy of Pediatrics explaining that the morning-after pill "absolutely does not cause abortion." In response, the director of a Christian public policy group admitted that at most, opponents of emergency contraception can only claim the FDA's labeling on the topic is "inconclusive." This unscientific hedging is currently rejected by the National Institutes of Health, the Mayo Clinic, and the FDA's counterparts in Europe.
Starr's description of the legal issues of the case are similarly stretched from the truth.
Despite acknowledging that "the ACA's contraceptive-services requirement is directed at their corporation, not the Greens personally," the op-ed still proclaimed that "the Greens should emerge victorious" in Hobby Lobby because "Hobby Lobby is the Green family." Yet Starr did not explain how a secular business can exercise exemptions provided under federal law previously limited to religious organizations not motivated by profit. Instead, he mysteriously hinted at an unnamed "part of federal law."
Centuries of corporate and First Amendment law, however, hold exactly the opposite.
The op-ed is also confused about how the so-called "contraceptive mandate" actually works. Remarking that if the Greens hadn't incorporated Hobby Lobby to their benefit, they would "likely win the case hands down and leave the Supreme Court's marble palace with a federally granted exemption from Obamacare's sweeping regulations," Starr fails to realize that if the Greens hadn't combined their religious efforts with a large-scale commercial endeavor, there would be no need for them to go to the Supreme Court at all.
Religious non-profits already enjoy a very broad accommodation that allows them to decline to follow the ACA's requirement that contraceptives be included in employer-sponsored health insurance. For that matter, even after incorporation, the Greens could have avoided the "marble palace" another way by recognizing that the "contraceptive mandate" is actually a misnomer -- they could just stop sponsoring health insurance in opposition to their employees' use of birth control.
Ultimately, Starr is perfectly free to ignore the thousands of employees whose sexual choices are compromised by Hobby Lobby's challenge to the ACA and defend the Greens. But USA Today cannot ignore the long-standing and presumably fruitful professional relationship between the Greens and Baylor University. At a minimum, USA Today owes its readers a disclosure so they can better assess the biases of this op-ed, and assess the credibility of this wildly one-sided advocacy with all the facts.
Correcting Starr's misinformation would be nice too.