On the day of the Hobby Lobby decision, MRCTV’s Dan Joseph was there to capture the insanity from the progressive left. The clip starts with the NARAL crowd chanting, only to stop once the pro-religious freedom protestors at the Supreme Court gave out a roar in exultation.
One protestor said, “Pro-life? That’s a lie, you don’t care if women die.” Joseph asked, “So, do you think as a result of a -- employer’s not having to pay for a woman’s birth control that a lot of women are going to die?”
She responded by saying, “yeah.” She added, “you’re going to take away birth control, what are you going to offer instead?”
Joseph pressed her further asking, “So, Hobby Lobby just caused a lot of women to die?”
The protestor smiled saying, “If you want to take it that way, yeah totally.”
Another protestor was more informed, saying that all birth control wasn’t on the chopping block in this case; just four methods that the owners of Hobby Lobby felt went against their religious convictions.
Lastly, a man, who appears to be a pastor, said, “corporations are not religious organizations.” Well, we’ll get to that point in a second. Although, Joseph seemed to trip up the pastor when he asked if corporations have First Amendment rights, which includes the freedom of religion. “They have speech rights,” he retorted.
This is only a dose of the psychosis that has permeated the political left since the 5-4 decision said that an employers of “closely-held companies" (i.e. not publicly traded) aren’t required to follow the contraception mandate if it went against their religious beliefs. The compelling government interest in the mandate can be adequately served with religious exemptions in accordance with the Religious Freedom Restoration Act.
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Of course, the legal system has many rules that require people to do what they think religiously wrong (or, the legal equivalent, to not do what they think religiously required). Not all religious exemptions can be granted. RFRA provides that, if denying the exemption is really the least restrictive means of serving a compelling government interest, a court should indeed deny the exemption.
But “[t]he least-restrictive-means standard is exceptionally demanding.” Under RFRA, if the government can — even by changing the way its programs operate, and at some cost to taxpayers — both adequately serve its compelling interests and provide an exemption to religious objectors, then it must do so.
To address the protestor’s concerns, SCOTUS didn’t ban contraception, women aren’t going to die as a result, and because there is no ban; contraceptives will remain readily available across the country. As Guy Benson wrote earlier this week:
Prior to the 2010 Obamacare contraception mandate, birth control was legal, widely available, and generally affordable. None of that has changed, and that's a good thing. Public polling shows that most Americans believe in general that employers should provide birth control coverage (as I mentioned earlier, a most do), but public opinion cuts much closer when the issue is the government forcing the issue. The Washington Post reviews three different CBS News polls that show public opinion all over the map, due in part to question wording. One of those polls was released in March. It showed that a slim majority believes companies should be forced to pay for contraception coverage, but with a large majority supporting an "opt-out" for religiously-affiliated employers. A recent Gallup poll demonstrated that near-unanimous majorities of Republicans, Independents and Democrats view birth control as morally acceptable. The Hobby Lobby case, and other challenges to the HHS mandate, have never been about restricting contraception or trampling on women's rights, despite what some mendacious demagogues may say.
Nevertheless, even members of the media have also been dishonest about the Hobby Lobby decision. Just look at the Washington Post’s Ruth Marcus, who insinuated that you couldn’t possibly understand the Hobby Lobby case if you don’t have a uterus:
How did the Supreme Court manage to agree unanimously that police must obtain a warrant before searching cellphones yet split on whether employers must offer contraception as part of their health-care plans?To answer the pastor and Marcus, Ed Whalen at National Review had a rather thorough takedown of this uterine-hypothesis:
My explanation, slightly crude but perhaps compelling: All the justices, presumably, have cellphones. Only three have uteruses, and you know which way they voted.
Of course, a uterus is not a prerequisite for understanding the importance of access to birth control. See, e.g., Justice Stephen G. Breyer, who voted with Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan to uphold the contraceptive mandate.
But let’s be clear: It helps.
The first issue is whether for-profit corporations have religious-liberty protections under the federal Religious Freedom Restoration Act. Ginsburg’s extraordinary (and poorly reasoned) position means that an incorporated kosher deli could be required to serve non-kosher food. Judgments about the “importance of access to birth control” are no more relevant to this issue than judgments about the importance of access to non-kosher food are. (Kagan, along with Breyer, did not join Ginsburg’s dissent on this issue, so Marcus would presumably concede that her uterus explanation doesn’t apply here.)
The second issue is whether the massive fines that Hobby Lobby faced substantially burdened its exercise of religion. Ginsburg’s implausible escape from the obvious “yes” answer turns on her confused conclusion that “the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial.” By her account, Ginsburg is relying on a general principle that a necessary “linkage” has been “interrupted by independent decisionmakers.” Alito powerfully explains why Ginsburg’s principle is wrong (the courts have no business deciding what religious beliefs about moral complicity are permissible) and contrary to precedent. (Pp. 35-38.) In any event, whether you agree with Alito or Ginsburg, their arguments do not implicate in any way competing assessments of the “importance of access to birth control.”
Conservative women endure the brunt of these vicious attacks for simply having an opinion that strays from the National Organization of (some) Women’s (NOW) ethos.
Whalen ends his Marcus analysis by listing three things judges should keep in mind:
(a) As a general rule, the obligation of impartiality requires that a judge strive to ensure that his or her life experience isn’t improperly influencing how the judge construes or applies the law.
(b) There will nonetheless be some (perhaps many) legal questions in which the judge’s life experience inevitably influences the act of judging.
(c) Among the many defects of the “living Constitution” approach to constitutional interpretation are that it invites judges to indulge their life experiences and that it vastly multiplies the instances in which it is supposedly proper or inevitable for them to do so.
Although, it’s highly entertaining see liberals in action when it comes to this stuff.
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