Martha McSally: I support Hobby Lobby decision

Ahhh, that’s so cute. Martha McSally pretending to be a lawyer — she claims “I actually took the time to read” the Hobby Lobby decision. Maybe so, but she clearly did not comprehend what she read, and is unaware of related court matters.

Per usual, on the rare occasion McSally actually takes a position on an issue, she tries to straddle the fence on both sides of the issue.

The Tucson Weekly reports McSally’s response to the Hobby Lobby decision Hobby Lobby Decision: Barber & McSally React:

McSally’s take:

I support women’s access to contraception as well as the protection of religious liberty. [Straddle that fence!] Unlike many commenting on the U.S. Supreme Court verdict, I actually took the time to read the opinion and my statement here is based on the facts of the very narrow ruling. At issue is not whether women should have access to contraception without cost, but whether the Obamacare mandates and substantial penalties are the legal way to provide that access. The court ruled that the Obamacare mandate for employers to provide twenty methods of contraception for free, including four post-fertilization methods, substantially burdens the religious freedom of closely held companies owned by individuals with sincerely held religious beliefs that life begins at conception. The court ruled that the mandate violates the Religious Freedom Restoration Act (RFRA), which “prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.

I agree with the majority of the court that the Obamacare mandate and penalties are not the least restrictive means of providing women access to contraception. Health and Human Services already identified a work-around for religious non-profits and I agree with the court that this work-around can apply in these narrow circumstances as well. But now we need to be focused on how we ensure more women have access to health care. The fact that we’re in this position shows exactly what’s wrong with Obamacare. It tries to force individuals and business owners into compliance through mandates and penalties, and, as we’ve seen, has actually hurt women’s access to health care through cancelled policies and reduced choice. I support patient-centered reform that ensures all women have access to affordable health care.

I can always tell when someone has not read past the head notes of the case. If you want to understand the majority opinion, you must first read Justice Ruth Bader Ginsburg’s dissent for the statement of the law as it existed prior to this radical departure from religious exercise jurisprudence.

McSally’s assertion that this is a “very narrow ruling” is nonsense. The Supreme Court on Tuesday confirmed that its decision on Monday in Hobby Lobby extending religious rights to closely held corporations applies broadly to the contraceptive coverage requirement in the new health care law, not just the handful of methods the justices considered in their ruling. SCOTUS: Ruling Applies Broadly To Contraception Coverage:

The justices did not comment in leaving in place lower court rulings in favor of businesses that object to covering all 20 methods of government-approved contraception.

Tuesday’s orders apply to companies owned by Catholics who oppose all contraception . . . They are among roughly 50 lawsuits from profit-seeking corporations that object to the contraceptive coverage requirement in their health plans for employees.

And about that “work around” McSally says the majority recognized: on Thursday, the Supreme Court issued an order that temporarily exempts Wheaton College from part of the regulations that provide contraception coverage under the Affordable Care Act. Birth Control Order Deepens Divide Among Justices:

The court’s order (.pdf) was brief, provisional and unsigned, but it drew a furious reaction from the three female members, Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan. The order, Justice Sotomayor wrote, was at odds with the 5-to-4 decision on Monday in Burwell v. Hobby Lobby Stores, which involved for-profit corporations.

“Those who are bound by our decisions usually believe they can take us at our word,” Justice Sotomayor wrote. “Not so today.”

The court’s action, she added, even “undermines confidence in this institution.”

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Justice Sotomayor said the majority, which acted on an emergency application, had not only introduced pointless complexity into an already byzantine set of regulations but had also revised its Hobby Lobby decision.

That decision, Justice Sotomayor said, endorsed an arrangement allowing nonprofit groups to sign a form that would transfer the delivery of free contraception under the Affordable Care Act to others. But Thursday’s order rejected the mandatory use of the forms for Wheaton College in Illinois.

Justice Sotomayor said the ruling reached beyond Wheaton and could lead to similar results at many other nonprofit religious organizations that have similar concerns. “The issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedy,” she said.

Such as the Little Sisters of the Poor v. Sebelius case from earlier this year, in which the Supreme Court granted the Little Sisters an injunction pending appeal, protecting them from enforcement of the option to use a third party insurer to provide these objectionable services to their employees, while they litigate their appeal at the Tenth Circuit Court of Appeals.

While an estimated 85% of large employers already paid for contraceptives before the healthcare law required it, some companies that don’t want to pay for contraceptive coverage have their insurers trying to figure out how to change their policies. Some firms begin backing away from birth-control coverage. Does this sound like they are “focused on how we ensure more women have access to health care”?

Here’s an issue that I am confident McSally never even considered: health insurance benefits are employee compensation. An employee has earned that compensation through her work. When an employer tells a female employee that the health plan will no longer cover contraception and she will have to pay for it out of her own pocket, that is a form of wage theft by the employer from the employee. A female employee is economically disadvantaged vis–à–vis similarly situated and compensated employees.

And as Molly Ball reported at The Atlantic, the Religious Right is already citing the Hobby Lobby decision for a right to discriminate against gays and lesbians based upon “sincerely held religious beliefs.” (This is Arizona’s SB 1062 that caused a national furor). Hobby Lobby Is Already Creating New Religious Demands on Obama:

[The Hobby Lobby] decision is beginning to reverberate: A group of faith leaders is urging the Obama administration to include a religious exemption in a forthcoming LGBT anti-discrimination action.

Religious Exemption Letter to President Obama

Does McSally support the extension of Hobby Lobby to a broad assertion of religious liberty to discriminate against gays and lesbians based upon “sincerely held religious beliefs,” as her supporter Cathi Herrod at the Center for Arizona Policy wants?

McSally fails to acknowledge just how radical a departure from precedent and long-standing practice the majority opinion in Hobby Lobby is, because she clearly did not read the Ginsburg dissent:

The Court’s “special solicitude to the rights of religious organizations,” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 14), however, is just that. No such solicitude is traditional for commercial organizations. Indeed, until today, religious exemptions had never been extended to any entity operating in “the commercial, profit-making world.” Amos, 483 U.S., at 337.

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The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight. Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-profit corporations surely is not grounded in the pre-Smith precedent Congress sought to preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to that effect likely would have been made in the legislation. . . . The text of RFRA makes no such statement and the legislative history does not so much as mention for non-profit corporations.

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Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiastical and lay” corporations dates back to Blackstone, see 1 W. Blackstone, Commentaries on the Laws of England 458 (1765), and was reiterated by this Court centuries before the enactment of the Internal Revenue Code. . . . To reiterate, “for-profit corporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].”

The rest of McSally’s statement is just boilerplate anti-ObamaCare blather. Her statement is simply a wink and a nod to the Religious Right that “I’m with you” on Hobby Lobby. Her alleged support for “women’s access to contraception” is dubious and doubtful. That is just her attempt to straddle the fence.