National Review Editor “Literally” Misleads On Contraception Mandate

Before the Supreme Court even heard oral arguments in the next big challenge to reproductive rights, National Review editor Rich Lowry was already misinforming about the facts of the case.

On March 25, the Supreme Court heard Sebelius v. Hobby Lobby, a case that could grant the owners of for-profit, secular corporations the ability to deny their employees preventive services in employer-sponsored health insurance, contrary to federal law. The owners of Hobby Lobby, the Green family, incorrectly believe that some forms of contraception are “abortifacients” (even though they aren't). So, the Greens argue, because their religious beliefs prohibit any support of abortion, they cannot comply with the Affordable Care Act (ACA) provision that requires American health insurance to cover preventive services, like birth control, at no cost.

Right-wing media has been all too happy to advance Hobby Lobby's arguments and ignore the scientific consensus disproving the corporate owners, framing the issue as evidence of President Obama's supposed hostility to religious freedomNational Review's Lowry, who is no stranger to misinforming about the contraceptive cases in front of the Supreme Court this term, was quick to join the pro-Hobby Lobby chorus.

In a recent post, Lowry portrayed the Greens as “law-abiding people running an arts-and-craft-chain,” “minding their own business,” until “Uncle Sam showed up to make an offer that the Greens couldn't refuse -- literally.” 

Lowry continued:

As part of Obamacare, federal law demands that the chain cover contraceptives that the Greens consider abortifacients. The family decided it couldn't comply with the law in good conscience, and its case is now before the Supreme Court.

Hobby Lobby went from an inoffensive business to a scofflaw and an alleged combatant in the “war on women” in no time at all -- and without changing any significant employment or business practice. Thus is the transformation wrought by the coercive sweep of Obamacare, which risks doing as much damage to conscience rights as it has done to the insurance market.


The [Obama] administration argues that the owners of a for-profit corporation have no free-exercise rights, although this runs counter to common sense and the law. Everyone recognizes that nonprofit corporations have such rights, so what makes for-profit corporations different? Besides, Congress went out of its way to define the ambit of the Religious Freedom Restoration Act to include “any exercise of religion,” in order to create “a broad protection of religious exercise.”

Hobby Lobby is now bizarrely portrayed as wanting to barge into examination rooms. “Selectively denying insurance coverage for contraceptive methods an employer considers sinful,” the liberal legal lion Walter Dellinger wrote in the Washington Post, “makes the employer a party to a woman's medical consultations.” And here the Greens thought they were just selling glue, scrapbook paper, beads, and the like.

In reality, Hobby Lobby “literally” can refuse -- the corporation is free to not provide any insurance coverage at all, allowing their employees to purchase comprehensive coverage from the ACA exchanges instead.

The term “contraceptive mandate” is actually a misnomer, as Georgetown Law Professor Marty Lederman has repeatedly explained. Contrary to Lowry's description, the ACA is not forcing Hobby Lobby to “hold their employees hostage,” as a group of religious organizations who filed an amicus brief in this case put it. That's Hobby Lobby's own choice, to the detriment of their employees.

Lowry's declaration that Hobby Lobby became “an alleged combatant in the 'war on women' in no time at all -- and without changing any significant employment or business practice” -- is flat wrong. Hobby Lobby made “significant” changes to its healthcare coverage after the Becket Fund for Religious Liberty solicited the Greens. As reported by The Wall Street Journal, it was only when the Becket Fund asked Hobby Lobby to sue the government that they discovered their insurance plan already covered the contraceptives at issue:

In 2012, a lawyer for the Becket Fund for Religious Liberty, a nonprofit Washington law firm, called Hobby Lobby's general counsel to inform him of the health law's contraception requirement and to ask whether the company wanted to file a suit.

Mr. Green says he was shocked to discover Hobby Lobby was in fact offering in its insurance plan some of the emergency contraceptives at issue. He called for the insurer to revoke that coverage and signed onto the lawsuit.

Lowry is also mistaken on the law. The Obama administration is arguing “that the owners of a for-profit corporation have no free-exercise rights” because the Supreme Court has never held that a for-profit, secular corporation has such rights. Although the Court expanded the notion of “corporate personhood” in their 2010 Citizens United decision, it is unprecedented of Hobby Lobby to argue that a corporation -- a legal entity separate and apart from their owners -- is capable of worship or religious belief. It remains to be seen whether the ultra-conservative Roberts Court will embrace Hobby Lobby's, and Lowry's, radical new view of corporate religion.

It's telling that Lowry concluded by gratuitously rejecting the argument from the American College of Obstetricians and Gynecologists (as well as the argument of former solicitor general Walter Dellinger), that “employers should not be allowed to interfere in the provider-patient relationship.” In Lowry's world, if the non-existent religious fervor of a for-profit, secular corporation trumps established case law and reproductive science, then why not the medical expertise of women's doctors as well?

Photo via Flickr/Rick Moore under a Creative Commons license.