NRO Editor Continues To Misrepresent The Law And Science In Hobby Lobby

Ramesh Ponnuru, senior editor at National Review Online, is again pushing misinformation about a significant reproductive justice case currently in front of the Supreme Court, which could grant unprecedented rights to secular, for-profit corporations at the expense of American workers.

The Supreme Court recently heard Sebelius v. Hobby Lobby, a case that could drastically rewrite First Amendment and corporate law to make it easier for religious business owners to deny their female employees comprehensive employer-sponsored health insurance. Hobby Lobby, owned by the conservative Christian Green family, specifically objects to the fact that the Affordable Care Act (ACA) newly accepts all of the Institute of Medicine's recommendations for crucial women's preventive services, including contraceptive methods and counseling. Right-wing media have repeatedly misled on this case, and were quick to parse the transcripts in the wake of the oral arguments to declare victory for Hobby Lobby.

Ponnuru weighed in again on the case in a March 27 post, oversimplifying the federal law that Hobby Lobby is suing under to ignore the rights of Hobby Lobby's thousands of female employees, and misrepresenting a scientific study to support his unscientific arguments.

During the oral argument Justice Kennedy asked whether, on the government's theory of the case, it would be permissible to force companies to cover abortion in their insurance policies for their employees. I think the answer to that question is clearly yes. ... The case itself concerns a company that objects to covering drugs that may cause abortion.


For the purpose of the Religious Freedom Restoration Act, it is a sufficient answer to these points that the owners sincerely believe that offering coverage for the disputed drugs would violate their consciences. They sincerely believe that stopping implantation is equivalent to abortion, that the drugs pose an unacceptable risk of stopping implantation, and that they would be unacceptably complicit in what they consider to be an evil if they offered the coverage. To judge the RFRA claim, judges must decide whether those beliefs justify an exemption from a legal requirement without evaluating the merits of those beliefs.


Pro-lifers object to “ending a pregnancy” and “abortion” because they entail causing the death of a living human organism, which is indisputably what the human embryo is pre-implantation. The “view” that preventing implantation causes the end of a human life in that sense is simply a fact. Of course the law does not define the human embryo as “a human life” in the sense of a person with rights, but of course it does not so define unborn children long past implantation.

Ponnuru is barely half-right on the law. It is not “sufficient” for the owners of Hobby Lobby to assert only that they “sincerely believe” that some forms of contraception cause abortions (even though they really, really don't) -- they also have to show that the government has substantially burdened those beliefs. Even then, these sincere, if erroneous, burdened beliefs still must outweigh Congress' reasons for enacting the challenged law in the first place.  Under RFRA, the government can at times indirectly burden religious exercise in a generally applicable law if it is necessary to further a “compelling governmental interest.”  

In this case, Ponnuru skipped entirely the second half of this legal explanation, conveniently privileging the non-existent right of a secular, for-profit corporation over the established right of women to receive equitably comprehensive health insurance, pursuant to Congress' intentions under the ACA.

It remains to be seen whether or not the Supreme Court will adopt the view of the government (ignored by Ponnuru, but shared by numerous legal experts and religious authorities who filed amicus briefs in support) that requiring insurers to cover birth control without cost sharing is a compelling governmental interest. For that matter, it remains to be seen whether the Supreme Court will consider a requirement on insurance companies to be a burden on employers, or whether the ensuing indirect effect on employers outweighs a medically-recommended and neutral law in deference to the Greens' religious objection (misplaced in this case) to abortion.

The “sincerity” of this religious objection is typically not questioned by a court, but Ponnuru doesn't mention that a court will still be forced to weigh a scientifically inaccurate belief against a generally applicable law grounded in medicine. Instead, Ponnuru chooses to muddy the facts about fertilization, conception, implantation, and abortion.

To support his point that an embryo pre-implantation is “indisputably” a human life, Ponnuru favorably cites a 2011 survey of 1,760 obstetrician-gynecologists published in the American Journal of Obstetrics & Gynecology as a rejection of the repeated explanation of the American College of Obstretricians and Gynecologists and numerous other medical associations that the contraception methods Hobby Lobby objects to are not abortifacients. Ponnuru points out that the study suggests that “a majority did not subscribe to the alleged 'consensus understanding in the scientific and medical communities.'”

What Ponnuru pointedly does not mention is what the study ultimately concluded about the responses they received, and why it doesn't contradict the scientific consensus.

According to the study's authors, the purpose of the study was to “measure characteristics that are associated with believing that pregnancy begins at implantation rather than conception.” The study ultimately concluded that “obstetrician-gynecologists beliefs about when pregnancy begins appear to be shaped significantly by whether they object to abortion and by the importance of religion in their lives.”  

Since the passage of the ACA, at least 47 million women have been able to access preventive health care services at no charge through their health insurance plans, including birth control and cancer screenings. Increased access to low-cost or no-cost birth control also reduces the incidence of unintended pregnancies and the need for abortion. Beyond that, the freedom to choose when to have children allows women to access higher education and participate more fully in the work force, resulting in greater economic freedom.

Next time, hopefully, Ponnuru will include the other half of this story, which is a little bigger than just the Green family.