Mark Rienzi of National Review has written an interesting analysis of the recent lawsuits by 43 Catholic organizations, and the lack of media coverage.
As Rienzi notes,
One would think that this type of strong, coordinated legal attack in federal court, filed by one of the nation’s leading law firms (Jones Day) on behalf of the nation’s largest single religious denomination, would be deemed a top news story. The networks apparently disagreed — as did the New York Times, which ran the story on page A17.
But then the editorial writers at the Times eventually did grant the lawsuits prominent coverage — to criticize the Catholic Church for defending its rights.
He then rips the Times’ faulty reasoning.
First, of course the Church’s lawsuits do not seek to “impose one church’s doctrine” on anyone, much less “everyone.” The question is not whether contraceptives and abortion-inducing drugs will remain legal and available — it is whether religious organizations can be forced to provide free access to them.
Rienzi then notes the Times’ brilliant legal scholarship.
Second, the Times suggests there is something impermissible about the lawsuits’ asking for exemptions from “generally applicable” laws. It is hard to imagine anyone calling Obamacare “generally applicable” with a straight face.
Third, even if the mandate were generally applicable, federal law is clear that an exemption is required even from generally applicable laws unless imposing a burden on religion is the “least restrictive means” of advancing a “compelling” government interest.
Of course, the Times simply states that the HHS mandate is the least restrictive means of advancing a compelling interest, because it promotes women’s health and autonomy. As Rienzi notes,
But the compelling-interest test is not satisfied simply by naming some generally important interest — instead, the Court has explained that this test is “the most demanding test known to constitutional law” and requires the government to identify an “actual problem” in need of solving.
I wonder if the Times’ editorial board even thinks these things through. Do they actually proofread their text? To state, without any substantiation, that requiring Catholic organizations to supply contraceptives to employees is the “least restrictive means” is simply silly. As Rienzi notes,
Fourth, even if there were some problem with access to what Secretary Sebelius calls“the most commonly taken drug in America by young and middle-aged women,” there is no reason to think that the “least restrictive means” of addressing that problem would be to force unwilling religious institutions to provide access. As the government demonstrates each year through its Title X programs, it is perfectly capable of distributing contraceptive drugs directly when it wants to.
The Times’ editorial states that the problem was solved when President Obama declared that insurance companies would pay for the contraceptives, thus solving the conscience problem of the religious employers. However nice this might sound, President (or Congress) just can’t do that.
Our Constitution creates a republic, not a kingdom, and it has long been established that the president lacks the authority to take private property by fiat…
Which is probably why this supposed “accommodation” is only a nebulous proposal, to be readdressed after the election, while the unchanged HHS mandate is actually federal law.
The New York Times failed to give these lawsuits the new coverage they deserve. Instead of news coverage, the editorial board has presented an opinion piece so lacking in facts, legal analysis, and common sense as to be laughable.