HARPER: A justice’s argument overridden by a media agenda

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The Supreme Court decision in a narrowly drawn case this week on contraception created a firestorm in the media, with the dominant narrative that rulings against women loom ahead in the courts — a viewpoint not borne out by a review of the case.

In a 5-4 decision in Burwell v. Hobby Lobby, the court agreed that for-profit corporations with few owners could be exempt from federal government regulations requiring employers to cover certain contraceptives for their female employees due to their religious objections. Evangelical Christian David Green and his family own Hobby Lobby, an arts and crafts company based in Oklahoma. The court joined the case with Conestoga Wood Specialties, a Mennonite-owned furniture company in Pennsylvania. Hobby Lobby objected to four of the 20 contraceptive options — options mandated under President Obama’s Affordable Care Act.


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University of Chicago law professor Eric Posner, writing in Slate, focused heavily on Justice Ruth Bader Ginsburg’s dissent — as did many other analysts — rather than on Justice Samuel Alito Jr.’s majority opinion. Justice Ginsburg argued, “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.”

In the closing pages of her 35-page dissent, Justice Ginsburg posed some issues which have become a rallying point for those on social media. She also managed to inspire what I consider a really bad folk song on YouTube and a hashtag, #JoinTheDissent.

The dissenting justice engaged in hyperbole about whether the decision will allow employers with religiously grounded objections to prevent “blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids and pills coated with gelatin (certain Muslims, Jews and Hindus); and vaccinations (Christian Scientists).”

Justice Alito’s opinion consistently emphasized that the ruling applied to only a small number of companies and did not amount to a ruling about freedom of religion under the First Amendment. Instead, the judgment rested on a law, backed by President Clinton and a nearly unanimous Congress, the Religious Freedom Restoration Act of 1993. That law sharply circumscribed the scope of government intrusion into the ability of individuals to follow religious philosophies and teachings. Hobby Lobby wanted that protection extended to a closely-held corporation — a key argument on which the company won.

But many journalists apparently didn’t believe Justice Alito. CNN did accept an analysis from the National Women’s Law Center, which opposed the Hobby Lobby ruling, that companies from Mars Inc. to Wal-Mart could qualify as “closely-held companies” as defined under Justice Alito’s rulings. Unfortunately, CNN failed to contact either company to ask what they intended to do. Another CNN report even mischaracterized the ruling as centering on abortion rather than contraceptives. (You can read that actual decision for yourself at SupremeCourt.gov/opinions/13pdf/13-354_olp1.pdf).

Keep in mind that before Obamacare, a company could provide policies that exempted certain procedures and medications from coverage. For example, in vitro fertilization and plastic surgery were not covered in most policies.


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In an interesting take on the debate, University of Alabama law professor Paul Horwitz saw the decision in a different way from either Justice Alito or Justice Ginsburg.

“Throughout American history, there has been widespread agreement that in our religiously diverse and widely devout country, it is good for the government to accommodate religious exercise,” Mr. Horwitz wrote in The New York Times. “That consensus seems, quite suddenly, to have evaporated.”

Whatever the case, is it not possible to accept that Justice Alito meant what he wrote? Is it necessary to create some conspiracy propagated by five justices of the U.S. Supreme Court? It would seem preferable that journalists read the court’s actual words before speculating about their consequences — something few reporters apparently did this week.

Christopher Harper teaches communications law at Temple University. He worked for more than 20 years at The Associated Press, Newsweek, ABC News and “20/20.” He can be contacted at charper@washingtontimes.com and on Twitter @charper51.

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