National Review Online Senior Editor Ramesh Ponnuru dedicated his Bloomberg View column to misleading about two unprecedented Supreme Court cases that could make it easier for for-profit, secular corporations to refuse to provide insurance coverage to its employees that includes comprehensive preventive care.
On November 26, the Supreme Court agreed to hear arguments in Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius, two cases that would allow some corporations to obtain exemptions from the contraception mandate in the Affordable Care Act (ACA). The ACA already provides exemptions and accommodations for non-profit, religiously-affiliated organizations like churches and hospitals -- but the plaintiffs in Hobby Lobby and Conestoga are for-profit businesses that sell crafts and wood cabinets, respectively.
But that didn't stop NRO's Ponnuru from complaining that the contraception mandate runs afoul of the Religious Freedom Restoration Act (RFRA) because it imposes a "substantial burden" on Hobby Lobby and Conestoga. Ponnuru insisted that corporations are well within their rights to refuse to pay for coverage of preventive care such as contraception for their employees, but didn't seem to mind that allowing corporations to dictate the personal health choices of its employees could very well infringe on those employees' religious beliefs.
From Ponnuru's December 1 editorial:
From reading the New York Times, you might think that religious conservatives had started a culture war over whether company health-insurance plans should cover contraception. What's at issue in two cases the Supreme Court has just agreed to hear, the Times editorializes, is "the assertion by private businesses and their owners of an unprecedented right to impose the owners' religious views on workers who do not share them."
That way of looking at the issue will be persuasive if your memory does not extend back two years. Up until 2012, no federal law or regulation required employers to cover contraception (or drugs that may cause abortion, which one of the cases involves). If 2011 was marked by a widespread crisis of employers' imposing their views on contraception on employees, nobody talked about it.
What's actually new here is the Obama administration's 2012 regulation requiring almost all employers to cover contraception, sterilization and drugs that may cause abortion. It issued that regulation under authority given in the Obamacare legislation.
The regulation runs afoul of the Religious Freedom Restoration Act, a Clinton-era law. That act says that the government may impose a substantial burden on the exercise of religious belief only if it's the least restrictive way to advance a compelling governmental interest. The act further says that no later law should be read to trump this protection unless it explicitly says it's doing that. The Affordable Care Act has no such language.
Is a marginal increase in access to contraception a compelling interest, and is levying steep fines on employers who refuse to provide it for religious reasons the least burdensome way to further it? It seems doubtful.
Ponnuru's characterization of these lawsuits as entirely mainstream is misleading. Although the Supreme Court held in Citizens United that corporations had the right to engage in political speech without undue government restrictions, for the Court to hold that a corporation is a "person" capable of religious belief or conscience would be a radical reimagining of both First Amendment and corporate law precedent. As David Gans of the Constitutional Accountability Center pointed out, "it is nonsensical to treat a business corporation as an actor imbued with the same rights of religious freedom as living persons. No decision of the Supreme Court has ever recognized such an absurd claim."
Bloomberg columnist and National Review editor Ramesh Ponnuru picked up the repeatedly debunked right-wing media myth that President Barack Obama is "court-packing" because Senate Democrats are trying to hold up-or-down votes on nominees to the D.C. Circuit Court of Appeals.
In addition to the fact that filling vacant seats is not actually "pack[ing] the court," the term used to describe FDR's failed attempt to add more seats to the Supreme Court, Ponnuru includes a variety of discredited falsehoods in his column as reasons why Republicans should continue to block Obama's judicial nominees, regardless of their stellar qualifications and bipartisan endorsements.
From his November 12 Bloomberg column:
Senate Majority Leader Harry Reid says he intends to force a vote this week on the nomination of Cornelia Pillard to the court. Pillard's is one of three nominations Republicans are opposing. They say the Democrats are trying to pack the court. The Democrats say they're just trying to fill vacancies, and argue that the Republicans' behavior is so abusive they'll restrict the filibuster if it continues.
Republicans should remember what happened the last time we had such a fight, and they shouldn't give in.
Starting in 2003, the Democratic minority embarked on an unprecedented series of filibusters to stop President George W. Bush's appointments to appeals courts. Back then, Republicans said there was a crisis of judicial vacancies needing to be filled. Democrats replied that the courts, especially the D.C. Circuit, were underworked and that the Republicans were trying to pack the courts with like-minded judges. Now the sides are reversed, and so are the talking points.
As it happens, the Republicans have the better of the current argument. They aren't conducting a "blockade" that violates past norms. President Barack Obama's nominees are getting confirmed at a faster pace than Bush's were at the same point in his presidency. One of Obama's nominees, Sri Srinivasan, was unanimously confirmed in May.
And the D.C. Circuit now has even less work than it did when Democrats were blocking nominees. Merrick Garland, the court's chief judge and an appointee of President Bill Clinton, informed the Senate that the number of oral arguments per active judge has fallen over the past decade. So have the number of written decisions issued and appeals taken. Senator Chuck Grassley, an Iowa Republican, says that one judge on the circuit wrote to him to argue that "there wouldn't be enough work to go around" if more were appointed. Grassley has introduced a bill that would shrink the circuit by three seats, and urges the administration to fill vacancies in other circuits.
I'll let you in on a little secret: Nobody on either side of this debate actually cares about how big the circuit's caseload is. What they care about is the court's ideological balance.
Ponnuru goes on to assert that the D.C. Circuit "is actually balanced between Democratic and Republican appointees." This is not the first time right-wing media have trotted out faulty math to to try and argue that the D.C. Circuit is somehow ideologically balanced -- but it just isn't true. In fact, there are six judges on the court who have taken "senior status," a form of quasi-retirement that allows those judges to hear panel cases. Of the six judges who have taken senior status, five are Republican appointees. Far from being "balanced" ideologically, conservative justices outnumber their more liberal counterparts 9 to 5.
National Review Online is hyping a partisan lawsuit aimed at obstructing the ability of working Americans to obtain health insurance under the Affordable Care Act (ACA) as one that Republican governors should be "especially eager" to join.
The NRO applauded the Oklahoma attorney general for filing a lawsuit challenging the federal government's authority to offer tax credits in the new health insurance Exchanges set to open on October 1, blasting the "lawless" fashion in which the Obama administration is implementing the ACA. From Ramesh Ponnuru's September 25 column:
The attorney general of Oklahoma has filed a lawsuit that, if successful, would cripple Obamacare by challenging the lawless way the Obama administration is implementing it. (Implementing it lawfully, that is, would cripple it.) Most states have not created exchanges, and in those states the law as written does not authorize the administration to offer tax credits-and, because of that, limits its ability to impose its penalties on employers and individuals. As far as I can tell, there would be no downside for conservative attorneys general to launch their own lawsuits-or for Republican politicians at the state and federal level to support them, whether by filing briefs or speaking on their behalf.
I'm persuaded that the merits of the case are on the side of Oklahoma. I suspect, though, that courts will have an easier time seeing it that way if politicians help to create a sense that it is a respectable position and not something coming out of left field.
Though NRO is "persuaded" that Oklahoma has a winning case in its goal of denying affordable health insurance to low- and moderate-income people, it appears to be only one of a few. The legal argument Oklahoma Attorney General Scott Pruitt is making is an extremely strained reading of what is, at worst, an unintended ambiguity in the ACA. Pruitt is essentially arguing that, if a state refuses to establish its own exchange, the federal government is not legally permitted to provide crucial tax subsidies to consumers attempting to buy insurance through the default federal exchange instead. The Center for Budget and Policy Priorities notes that this counterintuitive reading of the law is clearly incorrect -- participants must be eligible for tax credits regardless of whether they obtain insurance through a state-run or federally-run exchange. The affordable care law is designed to make the federal exchanges affordable.
Despite increasing evidence of a pro-corporate slant in recent Supreme Court decisions, right-wing media continue to insist that there is no such bias.
In a Bloomberg View editorial, National Review Online senior editor Ramesh Ponnuru accused Sen. Elizabeth Warren (D-MA) of "hyperbolic" grandstanding because she accurately cited a comprehensive study that showed that the current Supreme Court of the United States is one of the most pro-business in history. Ponnuru's September 16 editorial called Warren's statements the result of "flawed thinking":
Citing "a recent study"... she said: "The five conservative justices currently sitting on the Supreme Court are in the top 10 most pro-corporate justices in a half-century -- and Justices Alito and Roberts are numbers one and two -- the most anti-consumer in this entire time."
The study doesn't tell us what Warren thinks it does, or anything we should care about. It gives equal weight to every vote by a justice, even though decisions plainly vary in importance for businesses, and for everyone else. It ignores decisions that matter a great deal for businesses but don't have business litigants.
Jonathan Adler, a law professor at Case Western University, notes that the study excludes Massachusetts v. Environmental Protection Agency, one of the two or three most important Supreme Court cases for business of the past decade. The court ruled that the Clean Air Act authorizes the EPA to fight global warming. Because neither named party in the case was a business, the study excludes it.
The study that Ponnuru dismisses, "How Business Fares in the Supreme Court," analyzed nearly 2,000 Supreme Court decisions over the last 65 years. Although Ponnuru doesn't say so, the study was co-written by esteemed--and conservative--federal judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. It has been described, even by its detractors, as "the most comprehensive examination of the Supreme Court's handling of business-related cases in the post-New Deal era."
The National Review has attempted to distract from Rep. Paul Ryan's (R-WI) and Rep. Todd Akin's (R-MO) support of the extreme "Sanctity of Human Life Act" -- legislation that equates abortion and contraception to murder -- by neglecting to mention its relevance to Akin's rape comments and falsely asserting potential bans on abortion aren't a concern. But it is the act's radical redefinition of a fertilized egg as a person that Akin was defending with his imaginary claim that "legitimate rape" does not lead to pregnancy, and the fact that voters in conservative states have rejected similar "personhood" laws merely demonstrates how far outside the mainstream Ryan and Akin are.
In their move to distance conservative media from Akin's comments, the editors of the National Review called for Akin to withdraw his candidacy for the U.S. Senate. However, this calculated abandonment of Akin for announcing a right-wing view that the National Review acknowledges, but prefers kept under wraps, ignores the resurgent movement to criminalize all forms of abortion. By omitting the relevance of the Sanctity of Human Life Act to Akin's comments and the editorial's claim that "no state is going to ban abortion in the case of rape even if Roe v. Wade is overruled," the editorial is perpetuating frequent contributor Ramesh Ponnuru's attempts to gloss over Ryan and Akin's hostility to reproductive rights.
Indeed, the National Review's misdirection is even more apparent now that it appears the 2012 Republican platform will once again support a so-called "human life amendment" to the Constitution that would criminalize abortion in all circumstances. Furthermore, not only is the National Review's reassurance on state abortion bans irrelevant if reports on the GOP platform are accurate, it is wholly misrepresentative of recent state efforts to infringe on women's constitutional rights. In fact, conservative-leaning states have seen multiple attempts at "personhood" bills similar to Ryan and Akin's legislation. This fall, Colorado will likely again have a "personhood" ballot initiative presented to its voters, even though the unconstitutional measure just failed in Mississippi and was held "void on its face" in Oklahoma by the state Supreme Court.
Accordingly, it is unsurprising that Akin's apology for becoming "nationally notorious...for saying something stupid" was specifically only for the "words I said" in reference to rape and not for "the heart I hold," wherein presumably all abortion is criminalized pursuant to "personhood" legislation. A radical criminalization that, the National Review fails to mention, could also apply to in-vitro fertilization, stem-cell research, most forms of contraception, and even miscarriage.
Once again, a news organization seems to think the only people of faith who matter are white, conservative people of faith. This time it's Politico:
But it turns out (big surprise) that by "Christian voters," Politico meant "conservative Christian voters."
Though several moderate to conservative evangelical pastors support the president, polls show that a significant percentage of conservative Christians remain skeptical about Obama's sincerity when it comes to the values that he says they share, and many say they doubt his faith. [Emphasis added]
Oh, and it also turns out that Politico meant white Christian voters:
During the 2008 presidential election, voting patterns show Obama won modest but significant swaths of religious voters, winning a higher percentage of Protestant, Catholic and Jewish voters than John Kerry did in 2004.
But according to a recent Pew Research poll, more white evangelicals erroneously believe that Obama is Muslim than those who believe he is Christian, and 42 percent say they don't know what religion he practices at all. [Emphasis added]
That's the only polling data Politico offers in support of its claim that "Christian voters" are abandoning Obama: poll data about white evangelicals. The entire article is about conservative, evangelical voters. (The word "conservative" appears eight times in the article.)
It's like Politico has forgotten that non-whites and non-conservatives can be Christians, too. Which is odd since the photo accompanying the article shows President Obama speaking to what appears to be a largely African-American congregation:
I can only assume Politico's headline writers understood that "Conservative white evangelicals don't like Obama" isn't exactly news, and that understanding led to the conflation of conservative white evangelicals with all Christians.
Meanwhile, here's a recent Pew finding Politico didn't mention:
Most Republicans (57%) see the GOP as friendly to religion, which is little changed from last year (59%). However, the proportion of white evangelicals saying the Republican Party is friendly to religion has slipped, from 53% last year to 46% today.
So, white evangelicals, a core GOP constituency, are "losing faith" in the Republican Party -- but Politico ignores that and runs an article conflating the skepticism of President Obama among white evangelicals with the views of all Christian voters.
I've previously addressed the conflation of "observant Catholics" with "white, non-Hispanic Catholics" by the Washington Post and Ramesh Ponnuru. Also related: Byron York's weird suggestion that President Obama's approval among African Americans doesn't really count.
The problem for Mr. Clinton is that his concern about the dangers of incendiary rhetoric seems to have taken flight during the two terms of the Bush presidency, as well as during his own. Regarding the former, there was, for starters, the 2006 film, The Death of a President, on the assassination of President Bush. Mr. Clinton did not, to my knowledge, condemn the movie in a front-page story in the New York Times or in a major speech.
Ponnuru joins in:
Former president Clinton--who, as Peter Wehner reminds us, didn't raise a peep when liberals were writing novels and making movies about assassinating President Bush--got into the act over the weekend, suggested that today's anti-government rhetoric could encourage bloodshed.
A few facts about The Death of a President make it a pretty lousy comparison. First, it was a British film, not an American one, which undercuts Ponnuru's attempt to equate today's overheated right-wing rhetoric with previous liberal speech. Second, nobody saw it. The movie grossed a meager half a million dollars in the US, and was in theaters for only 14 days. It was utterly insignificant, which goes a long way towards explaining why Bill Clinton didn't bother to condemn it.
By the way, Hillary Clinton did weigh in, calling the movie "despicable" and "absolutely outrageous" and adding "That anyone would even attempt to profit on such a horrible scenario makes me sick."
Currently featured on the front page of the Washington Post's web site:
Richard Cohen's frightened plea for more torture and fewer civil liberties
Dana Milbank's inane column about the purported sexiness of the Budget Director
Ramesh Ponnuru's unsubstantiated claim that President Obama "arguably implied" that voters are "stupid."
An "On Faith" guest post by the American Life League's communications director, who describes feminists as "pro-abortion."
Howard Kurtz's daily exploration of the love lives of the powerful and famous.
And that's just what's linked on the front page -- it doesn't include sports columnist Sally Jenkins' reference to "pro-abortion" feminists, who she mocks as "the 'Dwindling Organizations of Ladies in Lockstep,' otherwise known as DOLL" while criticizing "the group-think, elitism and condescension of the 'National Organization of Fewer and Fewer Women All The Time'" and "'The National Organization for Women Who Only Think Like Us.'" Jenkins concludes with a transparently silly attack on those who criticize CBS's decision to run an anti-choice Super Bowl ad while rejecting an ad for a gay dating service: "CBS owns its broadcast and can run whatever advertising it wants." Yeah ... So? That does not immunize them from criticism for the decisions they make.
I'm really starting to worry there's something in the water over at the Washington Post bulding.
Two posts on National Review Online claimed that President Obama was untruthful when he said that the Supreme Court's decision in Citizens United v. FEC "open[ed] the floodgates for special interests - including foreign corporations - to spend without limit in our elections." In fact, four justices of the Supreme Court agreed that the logic of the decision "would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans" to make certain election-related expenditures.
The Weekly Standard's Stephen Hayes, National Review's Ramesh Ponnuru, and Power Line's Paul Mirengoff are among the conservatives to recently reject comparisons trumpeted by other right-wing media figures of Sen. Harry Reid's controversial comments about President Obama to former Senate Majority Leader Trent Lott's past comments in support of Strom Thurmond's 1948 segregationist presidential campaign. Hayes, Ponnuru, and Mirengoff join several civil rights leaders and other media figures in rejecting that comparison.
The Washington Post's Ramesh Ponnuru offers up standard-issue right-wing opposition to "federal funding for abortion":
Americans may be divided about whether and to what extent abortion should be allowed, but for more than three decades there has been a fairly broad consensus that federal money shouldn't pay for it. Pro-lifers regard the Hyde amendment, which bans federal Medicaid funding for most abortions, as the single policy that has done the most to save unborn lives. Some pro-choicers regard it as consistent with their view that the government should stay out of abortion decisions.
The health-care legislation being considered by Congress up-ends this settlement. All of the major bills would offer new subsidies to help people purchase insurance that covers abortion, and those with a public option would authorize a new government-run insurer to cover abortions.
Most Republicans oppose this idea, and so do pro-life Democratic congressmen. They should keep fighting (even though the Democrats will surely be under a lot of pressure to give up). Abortion coverage would almost certainly raise the abortion rate, and would make taxpayers involuntarily complicit in the taking of innocent human life.
The objection to the (even indirect) use of federal funds to pay for abortion on the grounds that "the government should stay out of abortion decisions" is basically dishonest. Does Ponnuru consider Medicaid payments for a trip to the emergency room to fix a broken leg "government involvement in medical decisions"? I'm sure he doesn't. The government refusing to pay for a legal medical procedure is the opposite of the government staying out of the decision.
It's a shame Ponnuru doesn't attempt to reconcile the claim that the government refusing to pay for a legal medical procedure he doesn't like with the standard conservative complaint about "government bureaucrats getting between you and your doctor."
It's also a shame that Ponnuru doesn't explain why it's wrong to make taxpayers "involuntarily" pay for abortion, but it's fine to make them involuntarily pay for the death penalty, or wars of choice.
But mostly it's a shame that the Post doesn't ask him to. If it did, it might prompt an actual thoughtful discussion, rather than a rote regurgitation of broad talking points. It might actually help people understand Ponnuru's position. What he posted sure doesn't -- it doesn't include anything we didn't already know about conservative opposition to federal funding for abortion, and didn't address any of the obvious questions about that opposition. It added absolutely nothing to the discourse.
Remember back in May, when a Gallup poll found a majority of Americans call themselves "pro-life" -- a nine point margin over those calling themselves "pro-choice"? Remember how the media rushed to tout the findings, despite the fact that the poll had glaring flaws that rendered the findings dubious at best?
Well, last week, Gallup released the results of a new poll -- one finding that 47 percent of Americans call themselves "pro-life," just a hair more than the 46 percent who say they are "pro-choice," providing further evidence that the May poll was an outlier.
This would be a good time for Ramesh Ponnuru to acknowledge that I was right when I pointed out the obvious flaws in the May Gallup poll.
Gallup acknowledges that whatever shift towards the "pro-life" label there has been over the past year has occurred among Republicans, and states that it is a reaction to the election of Barack Obama rather than a shift in beliefs:
The source of the latest shift in abortion views -- between 2008 and 2009 -- is clear. The percentage of Republicans (including independents who lean Republican) who call themselves "pro-life" has risen by nearly 10 points over the past year, from 60% to 68% -- perhaps a reaction to the "pro-choice" presidency of Barack Obama -- while there has been essentially no change in the views of Democrats and Democratic leaners.
The new Gallup poll also found that only 18 percent of Americans think abortion should be illegal in all circumstances. But don't expect to hear the media say much about that poll result; they have a lengthy track record of privileging opposition to abortion.
(For the record, I continue to find questions asking people to label themselves "pro-life" or "pro-choice" less illuminating than questions that ask people whether they think abortion should be legal in specific circumstances, for reasons I explained last month.)