The Left's Contraception Deceit

Posted: Mar 25, 2014 1:40 PM

Sarah offered a useful preview of today's Hobby Lobby v. Sebelius oral arguments, and Katie linked to important piece by Gabriel Malor -- who in a separate analysis broke down why the plaintiffs in this case have the stronger legal argument:

There is a key difference between a political argument and a legal argument that the government seems to have forgotten here. To win in politics, you take the other side’s worst arguments and hammer that. To win in a legal argument, however, you must take the other side’s best arguments and tear that down. Here, the government’s brief doesn’t directly address the businesses’ arguments, preferring instead to take a rambling trip through concepts like piercing the corporate veil, “attenuation,” and ERISA lawsuits. By contrast, the businesses focus directly on the question at issue: does RFRA protect them. It’s a telling difference.

To Malor's point on winning the political dispute surrounding this issue, the Left isn't even attempting to defeat the Right's worst arguments. Instead, they're erecting straw men to knock down -- an exercise in mendacious, manipulative intellectual laziness. To wit, a rally held outside the Supreme Court this morning, co-sponsored by NARAL, Planned Parenthood and the ACLU demanded that America's bosses butt out of women's birth control decisions. I received a press email about the event, excerpts of which I've reproduced below:


“Not My Boss’s Business”rally for women’s health and rights at Supreme Court


The choice about whether to use birth control should be between a woman and her doctor — and no employer should be able to interfere with that right

- Virtually all (99%) American women between the ages of 15-44 who are sexually active have used birth control at some time.

The way they frame it, supporters of the intrusive HHS mandate are simply arguing that it isn't a boss' place to tell a woman whether or not she should use birth control. (The Obama campaign presented the issue in similarly dishonest fashion back in 2012). Guess what? Conservatives agree. Employers shouldn't make personal decisions for their employees, nor should they "interfere" with contraceptive choices. According to a Gallup poll released after the birth control mandate controversy boiled over, Republicans are statistically just as likely as Democrats to view birth control as morally acceptable. Nobody is trying to "ban" contraceptives. What conservatives object to is the idea of the State coercing a relatively small number of religious employers to pay for other people's contraception. There's a coruscating distinction between trying to outlaw or limit access to a product, and asking not to be forced to violate one's conscience by directly facilitating the use of that product. The Left is actively seeking to obfuscate that distinction because the public isn't on their side when the question is presented even reasonably fairly.

Beyond that point, the memo from NARAL, et al also cites a 2009 CDC survey indicating that access to birth control clearly wasn't a problem prior to the Obama administration's decree. If 99 percent of sexually active women used birth control in the "bad old days," what crisis is this blanket mandate solving? Other reporting has demonstrated that birth control was widely available and very affordable (as it should be) before the heavy hand of government interfered, and that the vast majority of corporations already covered contraception under their existing health plans. Indeed, Hobby Lobby -- the Christian company at the center of today's legal proceedings -- already offers its employees access to 16 forms of birth control, including the pill. Being mandated to pay for a small handful of products considered by some to cause abortions, such as "Plan B," was a bridge too far, hence the lawsuit.

The Court will release its ruling in June. The justices must decide whether the religious exemptions to the HHS mandate being sought by hundreds of ecumenical plaintiffs are protected under the 1993 Religious Freedom Restortation Act (RFRA), which passed Congress in a nearly-unanimous vote and was signed into law by President Clinton. As former Scalia law clerk Ed Whelan explains, the companies and organizations represented in these cases must prove a "substantial burden" on their liberties, which should be a slam-dunk given the enormous fines associated with non-compliance. The government, for its part, must establish that violating these Americans' consciences both (a) serves a compelling state interest and (b) has been carried out in the least burdensome manner available. Given the millions of people who are already exempt from the birth control mandate (and considering the broad availability of contraceptives), the former argument may be challenging to advance. And it's extremely difficult to argue that a sweeping coercive mandate on all American businesses is the least burdensome method of securing universal, affordable access to birth control -- which many would argue was already effective the pre-mandate status quo. National Review's editors note that in light of conflicting lower court outcomes, this question was destined to be settled by the Supreme court. The justices' ultimate decision, they write, "will be only incidentally about what kind of health insurance we have — it will be about what kind of country we have."

UPDATE - Beware of SCOTUS tea leaves, but this seems promising: