In a post on National Review Online about a series of lawsuits challenging the Affordable Care Act's (ACA) contraception mandate, editor at large Jonah Goldberg misled about the mandate, how contraception actually works, and then asked why conservatives are considered the “aggressors in the culture war” .
On November 26, the Supreme Court agreed to hear oral arguments in Conestoga Wood Specialties v. Sebelius and Sebelius v. Hobby Lobby Stores. Even though the plaintiffs are for-profit, secular corporations, they want to claim an unprecedented exemption from a generally applicable law -- the ACA's contraception mandate -- because the individual owners of the companies claim their religious opposition to birth control is constitutionally more significant.
Goldberg viewed this opposition as evidence of Democrats “getting deeply involved in the reproductive choices of nearly every American,” arguing that the “conventional narrative” that “conservatives are obsessed with social issues” is thus unfair. Goldberg also significantly underestimated the impact a Supreme Court ruling in favor of Hobby Lobby and Conestoga would have on well-established First Amendment and corporate precedent.
From Goldberg's December 5 post:
Maybe someone can explain to me how, exactly, conservatives are the aggressors in the culture war? In the conventional narrative of American politics, conservatives are obsessed with social issues. They want to impose their values on everyone else. They want the government involved in your bedroom. Those mean right-wingers want to make “health-care choices” for women.
Now consider last week's decision by the U.S. Supreme Court to consider two cases stemming from Obamacare: Conestoga Wood Specialties v. Sebelius and Sebelius v. Hobby Lobby Stores. Democratic politicians and their fans on social media went ballistic almost instantly. That's hardly unusual these days. But what's revealing is that the talking points are all wrong.
Suddenly, the government is the hero for getting deeply involved in the reproductive choices of nearly every American, whether you want the government involved or not. The bad guy is now your boss who, according to an outraged Senator Patty Murray (D.,Wash.), would be free to keep you from everything from HIV treatment to vaccinating your children if Hobby Lobby has its way. Murray and the White House insist that every business should be compelled by law to protect its employees' “right” to “contraception” that is “free.”
[B]irth-control pills really aren't the issue. Both companies suing the government under Obamacare have no objection to providing insurance plans that cover the cost of birth-control pills and other forms of contraception. What both Hobby Lobby and Conestoga Wood Specialties object to is paying for abortifacients -- drugs that terminate a pregnancy rather than prevent one. (Hobby Lobby also opposes paying for IUDs, which prevent implantation of a fertilized egg.) The distinction is simple: Contraception prevents fertilization and pregnancy. Drugs such as Plan B may terminate a pregnancy, albeit at an extremely early stage.
The plaintiffs in these cases aren't saying the government should ban abortifacients or make it impossible for their employees to buy them. All they are asking is that the people using such drugs pay for them themselves rather than force employers and co-workers to share the cost. In other words, Hobby Lobby and Conestoga Wood want such birth-control decisions to be left to individual women and their doctors. Leave the rest of us out of it.
To answer Goldberg's initial question: conservatives are generally thought of as “the aggressors in the culture war” because they have dedicated countless legislative hours to passing unconstitutional abortion laws, have attempted to confer personhood on fertilized eggs, and often voted to defund clinics like Planned Parenthood, eliminating access to crucial family-planning services. In 2012, Republicans in Virginia tried to pass a bill that would have forced women to have a transvaginal ultrasound before obtaining an abortion -- a requirement that would have violated the federal definition of rape. Most recently, congressional Republicans threatened to shut the government down due to their opposition to access to contraception.
It's odd that Goldberg would cite Democratic opposition to these new legal challenges as evidence of the government getting involved with private medical choices, especially since Republicans have consistently demonstrated how eager they are to invade that privacy. It also isn't an accurate characterization of what's going on in the Hobby Lobby and Conestoga cases, which Goldberg also seems to misunderstand. The issue here isn't whether the government involves itself in personal health decisions, but whether these employers have the right to dictate their employees' level of access to preventive care, a set of benefits that includes not only services available to men, but also those used by women.
Corporations already enjoy some “personhood” rights. As the Supreme Court held in Citizens United, corporations have a First Amendment right to engage in political speech without undue government interference. But what the plaintiffs in Hobby Lobby and Conestoga are asking the Supreme Court to recognize is a form of corporate personhood that would go beyond the holding in Citizens United to find that corporations are also “persons” who have the ability to establish and exercise religious belief.
It should be noted that, although the ACA mandate requires employer-provided insurance plans to cover comprehensive preventive services like contraception without co-pays, it does not require the individual owners of those corporations to take or use any drugs to which they are religiously or morally opposed. This is an important distinction -- human beings generally set up corporations to create an entity that is legally independent from themselves as individuals to insulate their personal assets from liability.
But now the owners of Hobby Lobby and Conestoga want it both ways: for their corporate identity to be independent from themselves when it comes to protecting their wealth from lawsuits, but not when it comes to dictating the health choices of their employees. More importantly, a ruling in favor of Hobby Lobby and Conestoga could give preferential treatment to employers' religious beliefs while burdening those of their workers. As law professors Micah Schwartzman and Nelson Tebbe explained, “exempting Hobby Lobby [and Conestoga] from the contraception mandate will seriously burden precisely those women who are its intended beneficiaries. Supreme Court case law on the Establishment Clause does not allow that result.”
Moreover, Goldberg's “simple” distinction between contraception and “abortifacients” is just plain sloppy. Although conservatives continue to conflate the two, the fact is experts and science agree that birth control, including emergency contraception, does not induce abortions. Moreover, intrauterine devices (IUDs) are designed to prevent fertilization, not implantation of an already fertilized egg.
The facts are evidently not a problem for Goldberg. In his fantasy world, bestowing religious freedom on to corporations is what's most important.