Law & the Courts

Greenhouse, Overheated

“It’s hard to overstate the radical nature of what has just happened,” writes Linda Greenhouse. Really? She makes it look so easy. She is writing in the New York Times about the Trump administration’s expansion of a conscience exemption to the contraceptive mandate. Public policy on employers’ obligation to provide insurance that covers contraception is being partially rolled back to . . . where it was during President Obama’s first term. If you’d like to overstate the radicalism of “what has just happened,” a good first step would be not to mention or even allude to that fact. Greenhouse delivers.

Careful omission about the Supreme Court’s Hobby Lobby decision is also helpful. The Obama administration had offered religious groups an “accommodation” designed to respect their consciences while still furthering the goals of the mandate. Justice Samuel Alito, writing for the Court, noted that the accommodation had been challenged as an inadequate way of giving conscientious objections their due. But he also noted that the existence of the accommodation clinched part of Hobby Lobby’s case. The Religious Freedom Restoration Act allows the government to impose a burden on the exercise of faith only if it is the least restrictive means of furthering a compelling interest. The accommodation showed that a less restrictive means was possible. Thus simply applying the mandate to a company owned and run by religious objectors could not be allowed.

Greenhouse ignores Alito’s studious refusal to comment on the adequacy of the accommodation—a judgment on which was unnecessary to finish his argument or render the Court’s decision—in order to imply that the Court had favored the accommodation. The new policy differs from the accommodation, and so Greenhouse writes, “Now the Trump administration has played the Supreme Court justices for chumps.” It has not, but that’s the way Greenhouse is treating her readers.

She concludes her column with a malicious flourish: “Conservatives, even the publicly pious ones, don’t seem to have a problem with limiting the size of their families. (Vice President Mike Pence has two children, and Attorney General Jeff Sessions has three. Need I say more?) The problem they have is with what birth control signifies: empowering women — in school, on the job, in the home — to determine their life course. That’s what they don’t want to normalize.” Alternatively, they themselves do not object to contraception but respect the conscience rights of those who do, or who object to certain forms of it, and believe that the law commands that respect. No, Greenhouse need not say more. She has already proven that she reads hearts no better than Supreme Court opinions.

Ramesh Ponnuru — Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg View, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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