Today’s Supreme Court decision in Burwell v. Hobby Lobby made it clear that religious liberty trumps ObamaCare’s policy dictates. That’s bad news for liberals who believe their vision of universal health care can override the Constitution as well as Republicans. But the silver lining for Democrats is that they think the decision will allow them to reboot their war on women theme just at the moment when it seemed the public might be tiring of it.
In Hobby Lobby, the court’s 5-4 majority established that the only guarantees that counted in the case were those of the First Amendment and Religious Freedom Restoration Act that set a high standard for the government to prove that it had a compelling interest to force citizens to violate their religious beliefs. As the decision stated, when it came to matters such as employment discrimination, faith cannot be an excuse for open bias. But the notion of the “right” of citizens to have free contraception or abortion-inducing drugs paid for by an employer who thinks such services violate their religion doesn’t meet the test.
The only parties that were potentially deprived of their rights in Hobby Lobby were the religious owners of the chain stores and other business people in a similar situation. The ObamaCare mandate treated their faith-based opposition to abortion drugs as irrelevant to the desire not for access to such drugs but to compel employers to pay for them. The court rightly decided that to do so to closely held corporations like Hobby Lobby was to create a situation in which the owners must choose between their faith and the right to do business. This would have been an intolerable violation of their rights that would create a cribbed definition of religious liberty in which faith must be abandoned in the public square.
Yet for Democrats, this commonsense reassertion of First Amendment protections is a new war on women being waged not by congressional Republicans but by conservative justices.
That’s the message being repeated endlessly on the left as it attempts to turn Hobby Lobby into a judicial version of Todd Akin’s infamous comments about rape and abortion. As Politico reports, it didn’t take long for Democratic operatives to begin ginning up their war machine in which the decision is now framed as an effort to impose fundamentalist religion on non-believers and to tell women what they can or cannot do with their bodies.
But what the Democrats are forgetting is that a Supreme Court decision protecting constitutional rights is not the moral equivalent of a political gaffe. Try as they might, Justice Samuel Alito’s ruling is not a repeat of Rush Limbaugh’s line about contraception advocate Sandra Fluke being a “slut.”
No one, not even the Green family that owns Hobby Lobby, is telling Fluke or any other women who wants free contraception or abortion drugs not to have sex or to use these products. But they are making it clear that they should not be forced to pay for these widely available items. Do the Democrats think Americans are so stupid as to misconstrue this entirely reasonable position as a war on women?
Given the events of 2012 when a few stray remarks by Limbaugh and then Akin morphed into a media-driven campaign meme about Republicans and women, perhaps they’re not far off. Limbaugh’s foolish comments about Fluke after she testified before Congress against the mandate helped transform a debate that up until that moment had been correctly focused on the Catholic Church’s principled opposition to the federal plan. Soon, everyone, at least in the mainstream media, was discussing how mean conservatives were to women, not religious freedom.
But a court decision is not so easily hyped into that kind of a distortion. Whether Americans agree with the Greens about abortion, and most probably do not, the reasonable center of American politics understands that this case is about balancing one demand for a benefit against rights. Turning that sort of a nuanced ruling, which limited the impact to a specific kind of company and which also set limits on how far faith could override policy mandates, into a one-liner requires more than an ad buy; it can only work when political operatives are in “big lie” mode.
The Democratic push will fire up their base and that is probably all they really want. But they must also be careful. No one liked it when Limbaugh insulted Fluke and Akin’s comments were as stupid as they were indefensible. But Alito’s decision is the sort of commonsense approach to policy that most Americans crave in that it defended principle while also recognized that even faith can go too far. If Democrats go all-in on an attack on religious liberty, barring a similar error such as that of Limbaugh, they may be the ones overreaching on the issue.