The Washington PostDemocracy Dies in Darkness

Democrats on Hobby Lobby: ‘Misspeaks,’ ‘opinion’ and overheated rhetoric

(Win McNamee/Getty Images)

“Really, we should be afraid of this court.  The five guys who start determining what contraceptions are legal. Let’s not even go there.”

— House Minority Leader Nancy Pelosi (D-Calif.), at her weekly news conference, on July 10

In the wake of the Supreme Court’s 5-to-4 ruling that, as a closely held company, Hobby Lobby was not required to pay for all of the birth-control procedures mandated by the Affordable Care Act, Democrats have rushed to condemn the court. But in some cases the rhetoric has gotten way ahead of the facts.

Here’s a round-up of some of the more noteworthy claims. In some cases, lawmakers concede that they make a mistake; in others, they are argue that they are offering what amounts to opinion, even though the assertion was stated as fact.

Statements on Supreme Court cases are notoriously difficult to fact check because rulings are open to interpretation – and the full impact is often difficult to judge until lower courts begin to react to the ruling. Both Democrats and Republicans use adverse Supreme Court rulings to rally their respective bases, but lawmakers have a responsibility not to succumb to overheated and inaccurate rhetoric.

Nothing in the ruling allows a company to stop a woman from getting or filling a prescription for contraceptives, but that salient fact is often lost as lawmakers jump to conclusions that the cost will be prohibitive. That may or may not be the case depending on circumstances. Moreover, it is worth remembering that when the Affordable Care Act was passed, 28 states already had laws or regulations that promote insurance coverage for contraception. The law sought to extend that across the country — and even with this ruling, that will remain the case for the vast majority of workers.

“Really, we should be afraid of this court.  The five guys who start determining what contraceptions are legal. Let’s not even go there.”

— Pelosi

This is a very odd statement from the House Democratic leader, given that the majority opinion flatly states that “under our cases, women (and men) have a constitutional right to obtain contraceptives,” citing the 1965 ruling in Griswold v. Connecticut, which under the right to privacy nullified a law prohibiting the use of contraceptives.

Drew Hammill, Pelosi’s spokesman, acknowledged that she “misspoke.” “Obviously the impact of the court’s decision is not to make these four contraceptive methods illegal – i.e. no longer allowed to be sold”, he said.  “But the overriding point here is that the decision does in fact limit access, which is the key point Pelosi made.”

Hammill cited Justice Ruth Ginsburg’s dissent that women have a compelling interest in being able to plan their pregnancies and that they need reliable birth control.

Later, in the same news conference, Pelosi decried that “five men could get down to specifics of whether a woman should use a diaphragm and she should pay for it herself or her boss.”

Hobby Lobby involved the owners’ objection to four types of birth control but not diaphragms, but here Pelosi adhered closer to the essence of the case (and a related temporary injunction the court awarded to Wheaton College): the question of who should pay for contraceptives. (The court also vacated a decision by an appeals court that had ruled against a Michigan company that objected to providing any contraceptives under its employee health plan, so that would include diaphragms.)

Ginsburg’s dissent pointed out that it costs $1,000 for the office visit and insertion procedure for intrauterine devices (IUDs) — “nearly the equivalent to a month’s full-time pay for workers earning the minimum wage.”

Our colleagues at PolitiFact gave Pelosi a rating of “false” for her comments, and we certainly agree, though we generally do not award Pinocchios when politicians fess up to a mistake.

Still, we note that despite her office’s admission of a mistake, the transcript of the news conference had not yet been corrected three days later. “It will be,” Hammill said. “We’re migrating to a new site in the next two weeks, so everything is a little slow.”

 “The one thing we are going to do during this work period, sooner rather than later, is to ensure that women’s lives are not determined by virtue of five white men. This Hobby Lobby decision is outrageous, and we are going to do something about it.”

— Senate Majority Leader Harry Reid (D-Nev.), remarks to reporters, on July 8

The Hobby Lobby decision was written by Justice Samuel Alito, joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. That’s certainly five men, but Thomas is African American.

“That was a mistake, and he knew it right away,” spokesman Adam Jentleson said. He noted that on other occasions Reid has simply said “five men.” (The four dissenters included three women.)

“This is deeply troubling because you have organized religions that oppose health care, period. So if you have an employer who is a member of an organized religion and they decide, you know, I wouldn’t provide health care to my own family because I object religiously, I’m not going to allow any kind of health-care treatment.”

— Rep. Debbie Wasserman Schultz (Fla.), Democratic National Committee chair, appearing on MSNBC, June 30

While there are some religions that object to certain medical procedures, Wasserman Schultz goes to quite an extreme to suggest that employers could block an employee from seeking any kind of health-care treatment. (Again, the issue was who would pay for contraceptives, not whether someone was barred from getting contraceptives.)

“The Chair was referring to the Justice’s ruling which puts employers’ religious beliefs ahead of the medical needs of employees,” spokesman Michael Czin said. “We fundamentally disagree with the logic behind that ruling.”

“[In Griswold v. Connecticut,] the Supreme Court said that the right of privacy of individuals and families trumped any state right to ban contraceptives.  It was a breakthrough.  They found privacy, at least the inference of privacy, in the Constitution. I asked that question repeatedly of Justice Roberts and Justice Alito to make sure that they would honor that same tradition of privacy. The Hobby lobby decision violates that fundamental premise. [While both justices were careful in their answers before confirmation,] they both said they stood by the Griswold decision.”

— Sen. Dick Durbin (D-Ill.), quoted in ABC’s “The Note,” July 10

Durbin serves on the Judiciary Committee and is the second-ranking Democrat on the Senate. Here, he appears to come close to saying what Pelosi asserted — that the ruling signaled a possible ban on contraceptives. He specifically mentions the Griswold decision, which as we noted was cited by Alito in the majority opinion as settled law.

But a Durbin spokeswoman said he was not trying to say the court was on a path to overturn Griswold. “He was saying Hobby Lobby was out of line with the general ‘tradition of privacy’ that permitted women to make their own choices about birth control,” she said, asking not to be identified. “He was critiquing this ruling and its impact on women’s access to contraceptive coverage, not making a prediction about future cases.”

“The U.S. Supreme Court’s Hobby Lobby decision opened the door to unprecedented corporate intrusion into our private lives. Coloradans understand that women should never have to ask their bosses for a permission slip to access common forms of birth control.”

— Sen. Mark Udall (D-Colo.), in a news release, July 9

Udall’s remarks were contained in a news release he issued with Sen. Patty Murray (D-Wash.) about a bill that seeks to overturn the Hobby Lobby decision. There is a bit of an irony here: Udall voted for the Affordable Care Act, which built upon the employer-based health-care system in the United States and thus led to a ruling by the Supreme Court in the first place. So it’s a chicken-or-egg question about how the door was opened in the first place.

Again, the issue is not whether women will have access to birth control, but whether the health plan will cover the cost. Spokesman Mike Saccone argues that this is, in effect, “a permission slip.”

“Following the court’s decision, women will need to effectively ask their employers if they will continue to cover contraception,” Saccone said. “They will need to determine if their boss will give permission for their insurance plans to cover birth control.”

He added: “Without insurance coverage, IUDs (what Hobby Lobby objects to covering) cost up to $1,000, which poses a huge barrier for women, especially if she is making the minimum wage. Without her boss’s permission to get coverage for that service in her health plan, it becomes much more — potentially prohibitively — expensive for that woman.”

“Before the Hobby Lobby decision, the fight against corporate influence was mainly about making sure real people and their ideas were in charge of elections. But now it is no longer just about a democracy; it is about keeping corporations out of our private lives, out of our bedrooms, and out of our religious decisions.”

— Sen. Jon Tester (D-Mont.), statement in the Congressional Record, July 10

Here again, a lawmaker mixes up the question of paying for contraceptives with a broader prohibition against all contraceptives.

“If an employer doesn’t cover contraceptive care, for many women access to birth control is effectively blocked because it becomes cost-prohibitive,” argued spokesman Dan Malessa. “If an employer refuses to cover contraceptives based on its religious views, then its religious views trump the religious views of its employees.”

“You know, what I am objecting to is that these bosses should not be able to tell their employees that they cannot use birth control. Motherhood is not a hobby. That is what I am objecting to.”

—Rep. Gwen Moore (D-Wisc.), speaking on MSNBC, July 1

Moore also falls into the trap of claiming that corporate bosses can now dictate whether women can have access to birth control. No boss under this ruling has the right to tell an employee that they cannot use birth control. That’s simply wrong, but Moore’s spokeswoman argued this is open to interpretation.

“Congresswoman Moore was referring to the Supreme Court decision that now allows certain employers to deny contraceptive coverage to their employees through employer-sponsored health care plans. By denying this coverage to their employees, many workers may not have the financial means to access this health care necessity,” spokeswoman Staci Cox said. “To your point on the Hobby Lobby decision concerning only certain forms of contraceptive coverage, the congresswoman would argue that the ruling opens the door for employers to challenge other vital health-care coverage, not limited to the four contraceptives you mentioned.”

“What they’ve done, Chris, is taken away the religious freedom of their employees. They have to comply with the religious freedom of their employers.”

— Rep. Louise Slaughter (D-N.Y.), interview on MSNBC, June 30

Is Slaughter really saying that the court has taken away an employee’s religious freedom because some contraceptives may not be covered by insurance? Eric Walker, her spokesman, says this is a matter of opinion.

“By forcing an employee to live with the religious choices imposed on them by their employer, the employee’s own religious freedom is infringed upon,” Walker said. “I think it’s fair to say that ‘freedom from religion’ goes hand in hand with ‘religious freedom.’ The first amendment protects Americans from having religion thrust upon them by others — a standard the court failed to uphold, in the congresswoman’s opinion.”

The Pinocchio Test

The Fact Checker generally does not award Pinocchios for “misspeaking” or for statements of opinion. And we obviously take no position on the Supreme Court opinion. But this collection of rhetoric suggests that Democrats need to be more careful in their language about the ruling. All too often, lawmakers leap to conclusions that are not warranted by the facts at hand. Simply put, the court ruling does not outlaw contraceptives, does not allow bosses to prevent women from seeking birth control and does not take away a person’s religious freedom.

Certainly, a case can be made that perhaps this is a slippery slope (as Ginsburg argues in dissent) or that the cost of some contraceptives may be prohibitively high for some women who need them. But the rhetoric needs to be firmly rooted in these objections — and in many cases the Democratic response has been untethered from those basis facts.

(About our rating scale)

Send us facts to check by filling out this form

Follow The Fact Checker on Twitter and friend us on Facebook