Nightly network newscasts and Sunday morning talk shows have largely failed to connect two recent Supreme Court decisions to Citizens United v. FEC, the case that radically expanded the legal concept of "corporate personhood" -- the idea that corporations have constitutional rights. This has left viewers with an incomplete understanding of how the Court applied this dangerous precedent to campaign finance and reproductive rights law.
The Wall Street Journal complained about a lawsuit filed by defeated Republican senatorial candidate Chris McDaniel, calling the suit "meritless" and an attempt to funnel money to trial lawyers -- despite the fact they have championed similarly far-fetched and expensive lawsuits that have been filed against President Barack Obama.
McDaniel, a right-wing tea party candidate, lost to incumbent Sen. Thad Cochran (R-MS) in the June 24 primary. McDaniel blamed his loss on voter fraud, claiming that his campaign found irregular voting patterns. Given the Journal's past concern with voter fraud and the American right to vote, it seems like McDaniel's lawsuit is just the sort of thing they would support.
But in an August 5 "political diary" titled "If You Can't Win, Sue," Journal opinion editor Allysia Finley criticized McDaniel's decision to challenge the election results, calling his proposed lawsuit an effort to "raise money to feather the nests of election lawyers." Finley also argued that the suit was "meritless" because "overturning the election results is a long shot, but then the real motivation of this Hail Mary may be to whip up populist furies."
From the editorial:
At a press conference Monday, Mr. McDaniel lambasted the "dirty money coming in from D.C.," and his attorney suggested that Cochran supporters who perpetrated the alleged election fraud ought to go to jail. Mr. McDaniel intends to take legal action in the event that the state GOP squashes his petition. The case could then take any number of routes through the state court system, but sustaining the challenge would require lots of lawyers and money regardless of how it proceeds. This would be a bonanza for Mr. McDaniel's election attorneys who have been making nice work from filing records requests.
Last month the McDaniel campaign sued county circuit clerks for denying them access to polling records with voters' birth dates. After the state Supreme Court rejected the petition, the campaign filed a motion for a rehearing, which was also denied summarily. Keep in mind that Mr. McDaniel started out as a trial lawyer. Filing meritless claims might be par for the course.
But Finley's editorial colleagues at the Journal apparently disagree that lawsuits filed by political losers are "meritless." Earlier this year, the Journal published Sen. Ron Johnson's (R-WI) announcement of his lawsuit suing the twice-elected Obama administration over the Affordable Care Act (ACA), promoting a lawsuit that was almost immediately thrown out of court. On June 27, the editorial board went further and directly praised John Boehner's questionable plan to sue President Obama over the one-year delay of the employer mandate of the ACA. Although many legal experts have largely dismissed this suit as well, the Journal argued that Boehner's lawsuit was evidence that "the Speaker is showing more care that the laws be faithfully executed than is President Obama." That editorial went on to assert that the lawsuit wasn't "frivolous" because apparently Boehner wouldn't "wager the House's reputation, and his own, on a novelty lawsuit."
In another editorial from July 31, the editorial board again encouraged Boehner's lawsuit, calling it a "shame" that the suit was being dismissed as "frivolous" because it purportedly "involves crucial questions about the architecture of American government and the separation of powers." The Journal ultimately concluded that "the courts may take such a challenge seriously." Strangely enough, none of these latter editorials seemed particularly concerned with the costs associated with Boehner or Johnson's suits, or how they might "feather the nests" of trial lawyers -- but perhaps money is no object as long as the defendant is Barack Obama.
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 July 23 editorial 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."
Right-wing media are celebrating now that the conservative justices of the Supreme Court have issued their unprecedented ruling in Burwell v. Hobby Lobby, with the Court adopting a number of conservative myths in the decision that allows sex discrimination in the name of corporate religion.
On June 30, the conservative majority of the Supreme Court -- five men and no women -- held that "closely held" for-profit secular corporations like Hobby Lobby are exempt under the Religious Freedom Restoration Act (RFRA) from the "contraception mandate." This so-called mandate, a provision of the Affordable Care Act (ACA), requires employer-sponsored health insurance to cover comprehensive preventive health care, including birth control. In so holding, the Court's decision in Hobby Lobby gave credence to some of the worst conservative myths that have been steadily advanced by right-wing media.
The fact that Hobby Lobby likely employs workers who have no moral or religious dispute with contraception didn't seem to be of much concern to outlets like The Wall Street Journal, National Review Online, or Fox News. From the start, NRO framed the case as a David and Goliath-like scenario, with the Green family owners of Hobby Lobby as victims of the federal government -- despite the fact that Hobby Lobby is a massive corporation, owned by billionaires, with hundreds of stores across the country. Fox & Friends host Elisabeth Hasselbeck went so far as to call the contraception mandate evidence of the "moral decay" of the Obama administration's policies. For right-wing media, the religious beliefs of the owners took precedence over those of their female employees. Apparently, the Supreme Court agreed.
The Court attempted to limit its decision to "closely held" corporations like Hobby Lobby, but according to experts, more than 90 percent of corporations are considered to be "closely held." In his majority opinion, Justice Samuel Alito downplayed the significance of the Hobby Lobby decision's expansion of the concept of corporate personhood, writing that "a corporation is simply a form of organization used by human beings to achieve desired ends" and claiming there was nothing radical about extending rights "whether constitutional or statutory" to for-profit secular corporations. His opinion conflated these businesses with non-profits just as right-wing media had urged.
The religious rights of the employees, now held hostage by their employers' moral objections, did not appear to make much of an impact on the Court's conservative majority.
Moreover, wrote Alito, the birth control requirement was not "the least restrictive means" of achieving the "compelling governmental interest" of ensuring no-cost comprehensive preventive health care services for everyone. Instead, said the majority, the government should "assume the cost of providing the contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections," thus shifting the employee-earned benefit of health insurance from a billion-dollar corporation to the general public.
It was enough for Alito that the Greens "sincerely believed" that the contraceptives at issue in the case are "abortifacients" -- echoing right-wing media's constant confusion of the two -- even though they really, really aren't.
Despite the fact that the Supreme Court struck down Massachusetts' abortion clinic buffer zone law, the Wall Street Journal editorial board complained that the Court didn't go further to disallow "other restrictions on abortion protests," inaccurately describing the majority opinion in the process.
On June 26, the Court ruled in McCullen v. Coakley that Massachusetts' buffer zone law violated the First Amendment because it was broader than necessary to achieve the Commonwealth's goal of promoting public safety outside of reproductive health clinics, while simultaneously declining to strike down the constitutionality of buffer zones in general. A version of the law was passed in 2000 in response to years of violent and deadly incidents outside of abortion clinics nationally and directed at Massachusetts clinics in particular. The legislature amended the law in 2007 to further help police officers enforce the law by implementing a 35-foot buffer zone around clinic entrances that prohibit anyone not on clinic business -- anti-choice protestors and pro-choice supporters alike -- from entering and remaining. The Court ultimately found that, while buffer zones are not unconstitutional in and of themselves, Massachusetts' law was not narrowly-tailored enough to support the legitimate interest in promoting public safety.
Joining and writing for the four liberal justices on the Court, Roberts limited his decision to the specific facts, and the specific petitioners in McCullen, as he struck down this specific buffer zone law. For Roberts, because the named plaintiff in this case was apparently a peaceful petitioner and not the "aggressive" type of "face-to-face" protestor who created "clashes" at the entrances of the health centers, the law regulated more speech than is allowed under the public safety rationale of constitutional buffer zones. But in a June 26 editorial, the Journal completely ignored the history of violence outside of abortion clinics across the country, and argued that Roberts "missed an opportunity to clean up one of the Court's mistakes" by failing to overturn Hill v. Colorado, a 2000 case that upheld the constitutionality of a different buffer zone law. The editorial went on to argue that the decision in McCullen "leaves too much speech in future jeopardy" because state legislatures are still free to regulate speech outside of clinics within the bounds of the First Amendment. The Journal also inaccurately claimed that Roberts confirmed that the Massachusetts law was "directed at peaceful speakers":
In McCullen v. Coakley, Chief Justice John Roberts writes that the law unconstitutionally restricts access to public sidewalks around abortion clinics in the name of "public safety" without "seriously addressing the problem through alternatives." By regulating public streets, the state directly foreclosed access to places that "developed as venues for the exchange of ideas." Restrictions must be based on misconduct, not directed at peaceful speakers.
So far, so good. The problem is that the Chief's opinion goes on to engage in contortions arguing that the Massachusetts law really wasn't trying to restrict the "content" of speech. That's critical because it means the law isn't subject to strict First Amendment scrutiny. It also means that while this Massachusetts law went too far, other restrictions on abortion protests might be allowable.
The fascinating question is why the Chief Justice refused to follow the logic of his own free-speech jurisprudence and overturn Hill v. Colorado. Perhaps he figured he would lose the four liberal Justices and thus the authority of a unanimous Court. Or perhaps he has been chastened by all of the liberal media critics who say he's too eager to overturn precedents.
The reality is that he's not eager enough, and thus the Court ends up with too many of these halfway decisions that reach the right outcome for what are often the wrong reasons. The First Amendment needs a more stalwart defender in the Chief Justice's chair.
Fox News host Martha MacCallum described the pending Hobby Lobby case -- a challenge to the Affordable Care Act's requirement that all employer-sponsored health insurance cover contraceptives as part of preventive services -- by repeating four right-wing media myths in the span of 17 seconds. MacCallum adopted the false narrative of the religious owners of the for-profit, secular chain store and its supporters during the June 25 edition of America's Newsroom:
1. "The Hobby Lobby case, which challenges the Obamacare conception mandate that requires ..."
As political science professor Scott Lemieux explained, "there is no 'contraception mandate.' Hobby Lobby is not legally required to compensate its employees with health insurance at all. ... What is erroneously described as a 'mandate' simply means that if corporations choose to take advantage of the tax benefits for compensating employees in health insurance rather than wages, the insurance has to meet minimum coverage standards." In other words, Hobby Lobby can avoid contraception coverage by providing no health insurance at all -- but it may not hold its employees hostage by sponsoring health insurance policies that are not complaint with the ACA.
2. "... that employers provide ..."
As Georgetown Law professor Marty Lederman has written, it would be the federal government that requires the insurance companies -- not Hobby Lobby -- to meet the minimum coverage standards that include comprehensive preventive services, including birth control. According to Lederman, "Once the HHS Rule goes into effect, it would not be the Greens who 'directed' the Hobby Lobby ... insurance plans, in any real sense, to cover contraception: That would, instead, be a legal requirement imposed by the government -- and it's a requirement that applies to any and all such plans throughout the nation, whether sponsored by an employer or not."
3. "... free access to conception methods ..."
It turns out that so-called "free" birth control isn't actually free. In fact, "it is misleading -- and politically dangerous to say so," according to Jodi Jacobson, editor-in-chief of RH Reality Check, because "if you have insurance, you pay for it, either by virtue of your labor or out of your own pocket, or, depending on the situation, both. And under the ACA, it is now mandated that your insurance plan cover certain benefits without a co-pay. This does not make them 'free.' It means that you are paying for that service as part of your premium. You earned it, you paid for it, it is yours. If you pay for it, you deserve to get it."
4. "... as part of a comprehensive Obamacare health policy, includ[ed] in that would be some drugs which could trigger abortion."
Despite the fact that Hobby Lobby "sincerely believes" that some contraceptives result in the termination of a pregnancy, the science simply does not support this claim. According to The New York Times, "It turns out that the politically charged debate over morning-after pills and abortion ... is probably rooted in outdated or incorrect scientific guesses about how the pills work. Because they block creation of fertilized eggs, they would not meet abortion opponents' definition of abortion-inducing drugs."