Matching the inflammatory rhetoric about health care reform's elimination of cost-sharing for women's contraception, conservative media outlets are currently misrepresenting a preliminary court order in a private company's challenge to this policy. Contrary to the right-wing narrative that crudely oversimplifies the complex legal issues at stake and ignores the need to balance the constitutional rights of employers with those of their female employees, the questions in the case are neither easy nor clear.
When the popular requirement went into effect that most insurance plans -- including employee plans sold to employers -- could no longer charge women co-pays or deductibles for prevention or wellness care, conservative media figures declared a national disaster. On August 1, the Editors of the National Review Online intoned that "[t]his day...is a dark one for religious freedom in the United States." Sean Hannity mirrored this solemnity on Fox News and announced "today is the day that religious freedom in America, in many ways died" (Fox Hannity Show, 8/1/12, via Nexis).
This reaction was unfortunately unsurprising. Despite the fact that many religious believers and institutions and most voters support insurance coverage of contraceptives, birth control has conflicted with the religious concerns of some since the 1960s. Recognizing this, the law provides an exemption from the contraceptive coverage requirement to "a nonprofit church or close church affiliate if it primarily employs and serves persons who share its religious tenets, and the purpose of the institution is the inculcation of religious values." [National Health Law Program, 8/12]
The exemption is similar to those used on the state level, and twenty-eight states currently have contraceptive insurance equity acts. The administration may also accommodate non-exempted non-profit organizations by allowing them to opt-out of the provision of insurance coverage for contraception, but instruct insurance companies to meet the preventive and wellness requirements directly. Nevertheless, claiming that these exemptions and accommodations do not go far enough, a for-profit, secular, Colorado-based company filed a lawsuit alleging it too should be treated like a church and be exempted from offering female employees plans with contraception coverage.
The case is one of first impression. As such, the judge issued a preliminary injunction, temporarily halting this company's compliance with the law until the court could consider the merits of the case. The Heritage Institute's Foundry said the company "demonstrated the strength of the religious liberty challenge to Obamacare." Ed Whelan of the National Review Online said "it's clear that the HHS mandate tramples [religious] protections[.]"
It's not that simple.
On July 29 The Heritage Foundation published a post on its blog, The Foundry, that called for the filibuster of Oklahoma Judge Robert Bacharach's bipartisan-supported nomination to the U.S. Court of Appeals for the Tenth Circuit. However, as the post noted, the unwritten Senate procedure that is the "Thurmond Rule" typically blocks a sitting president's judicial nominations at some point prior to a presidential election only if they are "cronies and ideologues." As a consensus pick, Judge Bacharach is clearly neither.
The Thurmond Rule is named after the late segregationist Senate Judiciary Committee Chairman Strom Thurmond (R-SC) and generally refers to the long-standing practice of the opposition party in the Senate blocking most judicial nominees after a certain date in the run-up to a presidential election. A successful filibuster tonight of Judge Bacharach's consensus bipartisan-supported nomination could well be an unprecedented and extreme extension of the practice at a time when judicial vacancies have become a crisis.
This so-called rule is nothing more than an unwritten and unrequired historical practice that has been used by both parties. But CQ Today reported on July 27 (via Nexis), "[n]o appeals court nominee who received bipartisan support in committee has ever been successfully filibustered on the floor." This inapplicability of the Thurmond Rule to consensus nominees has support in an analysis of the rule's application in a much-cited 2008 Congressional Research Service report that noted:
[T]he Senate is more likely to move forward late in presidential election years with what they view as "consensus" nominees. Some Senators have suggested that a nominee could be considered as a consensus choice if he or she has the support of both home state Senators.
While there may be disagreement as to which nominees are "consensus" nominees, the support of both home-state Senators (particularly if the Senators are of the opposition party) is an important indicator of the President's willingness to work with individual Senators when making nominations. [Congressional Research Service, 8/13/12]
Because the Foundry post appeared to recognize this point by stating the Thurmond Rule applies to "cronies and ideologues," it is peculiar that the post simultaneously called for Senate Republicans not to "hold their manhood cheap" and instead filibuster Judge Bacharach. The judge was not only rated to be unanimously "well-qualified" by the American Bar Association due to his "stellar professional qualifications," but also has the support of both of his conservative home-state Senators, Republicans James Inhofe and Tom Coburn. Considering Republican Senators Susan Collins and Olympia Snowe have already committed to voting to end the filibuster and his nomination "sailed through the Senate Judiciary Committee last month," criticism of the judge as a crony or an ideologue is unfounded. Senator Coburn has already gone on the record with his home-state paper as claiming application of the Thurmond Rule to Judge Bacharach would be "stupid" and:
"I believe that Judge Bacharach will uphold the highest standards and reflect the best in our American judicial tradition by coming to the bench as a well-regarded member of the community," Coburn said. "At a time when our country seems as divided as ever, it is important that citizens respect members of the judiciary and are confident they will faithfully and impartially apply the law." [NewsOK, 6/8/12]
Right-wing media have marked the 40th Anniversary of Title IX by attacking equal opportunity efforts for women in the "STEM" fields of science, technology, engineering, or math. The historic civil rights law prohibits discrimination in federally-funded education programs or activities on the basis of sex.
Conservative media has not only argued that such affirmative action is unconstitutional, but has gone farther and argued that the law does not apply beyond scholastic sports and requires quotas. They also insist that women simply do not want to study or work in science-or math-related fields. The first three claims are demonstrably incorrect; the fourth assertion contradicts numerous studies and cannot satisfactorily explain the disproportionate under-representation of women in these educational fields.
On the July 25 edition of Fox & Friends, Gretchen Carlson hosted a segment that touched on all of these discredited arguments in an interview with Hans Bader, Counsel for Special Projects for the right-wing Competitive Enterprise Institute. Bader concluded the interview by asserting that women are heavily underrepresented in the STEM fields because they naturally choose "organic subjects like people, plants, animals, biology, psychology." Carlson then ended the interview, noting that there "could be" a counter argument to this last claim.
Bader's Fox and Friends appearance is only the most recent example of conservative attacks on the Obama Administration's efforts to utilize Title IX for the promotion of equal opportunity in science and math education.
For example, Sabrina Schaeffer and Carrie Lukas of the conservative Independent Women's Forum did the same on June 18 and June 22 in the Huffington Post and U.S. News, respectively, Fox News Political Analyst Kirsten Powers took aim at sex-based affirmative action on July 17 in USA Today, and New York Post columnist Kyle Smith used the front page to launch a July 14 op-ed that was particularly reliant on sex stereotypes.
These conservative commentators repeated Bader's false claims: that Title IX's scope is limited to athletics, the Obama administration is proposing quotas, equal opportunity efforts disregard women's aversion to science and math, and affirmative action on the basis of sex is unconstitutional.
All of these conservative critiques are incorrect or unsubstantiated.
Despite pouring millions of dollars into ads attacking President Obama for supporting clean energy, Republican strategist and Fox News political analyst Karl Rove expressed his support this week for extending tax incentives for wind power. His remarks stand in stark contrast to the conservative media's push to eliminate federal support for renewable energy.
For months, the conservative media have been spreading falsehoods about wind energy to make the case against extending the production tax credit (PTC), which is set to expire at the end of this year. The most recent example is an op-ed by Paul Driessen at The Washington Times, which rattles off a series of myths about wind power's impact on human health and the environment, and its ability to compete with fossil fuels. Last month, a Wall Street Journal editorial suggested that the wind industry will never be "economically sustainable" without government subsidies. A Washington Times editorial concurred, calling wind power "hopelessly uneconomic."
In fact, wind power is increasingly affordable, thanks in large part to the PTC. According to an analysis by the Brookings Institution, the Breakthrough Institute and the World Resources Institute, the tax credit lowers the cost of new wind power to make it "broadly competitive with new gasfired generation." A Bloomberg New Energy Finance report found that some wind farms "already produce power as economically as coal, gas and nuclear generators," and predicted that "the average wind farm will be fully competitive by 2016."
U.S. wind capacity has expanded rapidly in recent years, and the Department of Energy estimates that wind could meet up to 20% of our electricity needs by 2030. But the PTC is vital to the American wind industry's continued success. Extending the tax credit would create or save 54,000 jobs in the next four years, according to a study by Navigant Consulting.
For these reasons, the tax credit enjoys broad bipartisan support among politicians, business leaders, and environmentalists -- and now, even Karl Rove. The conservative media stands out in its opposition to a policy that has facilitated the growth of a promising industry and supported thousands of green, American jobs.