Bench Memos

Breakfast with E.J. Dionne—Part 2

Some more observations (numbered serially from Part 1) on E.J. Dionne’s dog’s breakfast of commentary:

3. Dionne finds it “strange” that the Hobby Lobby majority “barely nodded at settling the factual question of whether birth control methods such as an IUD are abortion-inducing.” If Dionne were paying attention, he might have noticed that Justice Ginsburg, in her dissent, doesn’t even mention the issue. That might have led him to ponder why.

What is really strange is Dionne’s imagining that this was an issue for the Court to address.

Let me begin with what is, in the end, a side point: As I’ve explained before, the Obama administration approvingly cited the FDA’s Birth Control Guide for the propositions that an IUD “may prevent the [fertilized] egg from attaching (implanting) in the womb (uterus)”; that Plan B “may also work … by preventing attachment (implantation) to the womb (uterus)”; and that ella “may also work by changing the lining of the womb (uterus) that may prevent attachment (implantation).” Further, as I put it in my summary of a careful reading of the amicus brief submitted by ACOG and others (“PRH brief”):

[T]he PRH establishes that the Hobby Lobby plaintiffs are right to believe that copper IUDs can operate to prevent implantation (and thus to kill the developing human embryo). The PRH brief also reveals, if backhandedly, that the state of the science on whether Plan B and ella can also operate to prevent implantation is not definitively settled—and thus, given their objections to facilitating the destruction of human embryos, amply justifies the Hobby Lobby plaintiffs in resolving the scientific uncertainty against providing coverage of Plan B and ella (in addition to copper IUDs).

But the fact that the concerns of the Hobby Lobby plaintiffs are scientifically well grounded is, in the end, no business of the Court’s (as all nine justices recognize). To illustrate the point: Let’s say that science established that pork is no less pure than beef. Would that scientific finding mean that the owner of a kosher deli would not have a religious-liberty claim against being compelled to serve pork? Ludicrous.

(Courts can, I’ll note, satisfy themselves that the asserted religious conviction is sincerely held.)

4. Dionne perceives “a small victory for socialized medicine” in Justice Alito’s supposed declaration that the “best way” for the government to avoid burdening religious liberty would be for the government itself to provide the objected-to drugs and devices to any women who are unable to get them from their employers. What Alito actually said was merely that that would be the “most straightforward way.”

In any event, there shouldn’t be anything surprising about the proposition that an approach that doesn’t dragoon objecting employers doesn’t violate their religious-liberty rights. That proposition no more favors “socialized medicine” than it favors market-oriented approaches that don’t dictate to employers (or to other group providers of health-insurance coverage) the coverage they must provide.

5. Dionne finds “[o]ne bit of good news” in the “friendly remarks” that the majority makes about the so-called accommodation that has been offered to religious nonprofits. As I explain here, I think that he and others misread what the majority says.

6. Dionne endorses Justice Ginsburg’s claim that (in his paraphrase) the justices in the majority “want corporations to have it both ways”—“us[ing] the corporate form to escape ‘personal responsibility for the entity’s obligations’ … but then exercis[ing] the rights of individuals when doing so is convenient.”

Dionne fails to inform his readers that only Justice Sotomayor joined that part of Ginsburg’s opinion holding that for-profit corporations have no religious-liberty rights under RFRA. He gives no hint of Alito’s compelling statutory argument that corporations do have rights under RFRA. And he fails to acknowledge, much less contemplate, the extraordinary consequences of Ginsburg’s position.

7. Dionne closes with the exhortation that “Liberals should embrace religious liberty as their own cause.” If he meant that all Americans should embrace religious liberty as our cause, I would agree with him. But his petty and tendentious claim that religious liberty “should not be put to the service of reaction”—as though protecting people from being compelled to facilitate the killing of early human embryos is in “the service of reaction”—seems to indicate that Dionne approves of religious liberty only when it is in the service of his political agenda.

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