FACTS AND LEGENDS: Facts aren't stubborn things!

TUESDAY, FEBRUARY 21, 2012

Part 1—The Post visits 28 states: Within our hopeless political discourse, facts really aren’t stubborn things, despite what you may have heard.

Quite frequently, pseudo-facts are quite stubborn. Consider the news report in yesterday’s Washington Post concerning those 28 states.

For the past three weeks, a certain claim has been widely advanced within our political discourse. It dealt with those now-famous 28 states—28 states which already have laws like the new federal regulation proposed by President Obama. At least, that’s what the public has been told—in this fiery editorial in the New York Times, to cite one example. We’ll offer a fairly large chunk of what the editors wrote:

NEW YORK TIMES EDITORIAL (2/11/12): In response to a phony crisis over ''religious liberty'' engendered by the right, President Obama seems to have stood his ground on an essential principle—free access to birth control for any woman. That access, along with the ability to receive family planning and preventive health services, was at the foundation of health care reform.

Mr. Obama's new rule on birth control coverage lets institutions affiliated with a religion shift the cost of coverage to their insurance companies, but Mr. Obama assured Americans it would not result in other women, or the rest of the country, subsidizing that shift. By refusing to back down on Friday, Mr. Obama took an action that will help reduce the number of unwanted pregnancies, abortions and medical complications from pregnancy.

Nonetheless, it was dismaying to see the president lend any credence to the misbegotten notion that providing access to contraceptives violated the freedom of any religious institution. Churches are given complete freedom by the Constitution to preach that birth control is immoral, but they have not been given the right to laws that would deprive their followers or employees of the right to disagree with that teaching.

If a religious body does not like a public policy that affects its members, it is free to try to change it, but it cannot simply opt out of society or claim a special exemption from the law. Besides, contraceptive access is already in place in 28 states, and has been the law in New York for a decade, without inflicting the slightest blow to the teachings of the Roman Catholic Church, which has complied.

Mr. Obama had already gone too far out of his way to exempt churches and their religious employees from the preventative care mandate. It was not necessary to carve out a further exception for their nonreligious arms, like Catholic hospitals and universities, which employ thousands of people of other faiths.

Within the norms of the mainstream press, this editorial expressed an unusual view. The Times was saying that Obama shouldn’t even have exempted churches themselves from the mandate; very few others have taken this view. But the editorial included a version of the factual claim which has been widely advanced for the past three weeks. According to the Times, “contraceptive access is already in place in 28 states, and has been the law in New York for a decade.”

“Contraceptive access is already in place in 28 states,” the editors wrote, leaving readers to figure out what their murky statement might mean. For a clearer articulation of this claim, here was Kathleen Kennedy Townsend, presented on tape, two evenings before, on the Maddow Show:

TOWNSEND (2/9/12): I have four daughters, two of whom attended Catholic universities. And I want to say clearly that Catholic women of this generation know that they need contraceptive coverage. Ninety-eight percent of Catholic women use contraceptives—98 percent. Twenty-eight states already require that large institutions, Catholic institutions, cover contraceptive—28 states.

Maddow had offered a variant of the claim one night before. Al Sharpton did the same one night later:

MADDOW (2/8/12): The old boys club that dictates Beltway common wisdom has never been more unified than they have been this week in wagging their fingers at the Obama administration, saying what a political misstep it is to have health insurance cover contraception. To do what 28 states already do in a variety of ways, to give exemptions for churches but to otherwise say that anybody else who provides health insurance has to cover contraception as a basic part of health care. The old boys club that dictates common wisdom has also never shown more stupefying ignorance for the fact that they are an old boys club, and not everybody is an old boy.

SHARPTON (2/10/12): Bob Shrum is a Democratic strategist and professor at NYU. Bob, 28 states already have laws on the book requiring that health insurance covers contraception. How in the world do we get to this point where Republicans are trying to use the issue to demonize the president?

The claim was expressed in a wide range of ways. But those 28 states got famous real fast. This dates to a February 2 statement by Obama spokesman Jay Carney. It was that statement by Carney which launched a thousand variants.

Question: Do 28 states already have laws on the book requiring that health insurance covers contraception? Is contraceptive access already in place in 28 states? On February 8 and 9, guests on several cable shows said that these claims were false or misleading. On February 9, Lawrence O’Donnell said that, as far as he could tell, there were no state laws which bound Catholic institutions in the way the new federal mandate would do.

Who was right? Do 28 states already have laws requiring that health insurance covers contraception? Or was the actual number smaller, perhaps as small as none? Yesterday, a major newspaper finally made a first attempt to examine this widely-voiced assertion.

Do 28 states have laws on the book requiring that health insurance covers contraception? Yesterday morning, the Washington Post offered a detailed first attempt to answer that question.

Here’s the breakdown the Post reported concerning those 28 states:

According to the Post, nine of these states exempt almost everyone from the mandate. This includes “all types of religious institutions, and in some cases, other employers who object on moral grounds.”

If the Post is right about that, we’re quickly down to nineteen states. Why were we ever talking about 28 states if the number, at most, is nineteen?

Also according to the Post, seven of those nineteen remaining states exempt “churches and some religiously affiliated institutions (schools or charities, for instance).” Now, we’re down to only 12 states which have state laws resembling the rule originally proposed by Obama.

And yet, according to the Post, our problem is just getting started!

According to the Post, twelve states do have laws which resemble the federal rule Obama originally proposed. Indeed: On the surface, eight of those states have laws which are even stricter than Obama’s original proffer; these states have laws which don’t even exempt churches from the mandate. But uh-oh! As N. C. Aizenman explains in the Post, sometimes things aren’t as simple as they may seem:

AIZENMAN (2/20/12): Nearly a third of those [28] states don’t offer an exemption even for churches—let alone an exception for the church-affiliated charities, universities, hospitals and other employers that are pushing to be left free from the federal rule. (And even in states that have no birth control coverage requirements, some Catholic-affiliated institutions have chosen to offer it voluntarily—including Georgetown University in the District.)

Yet many religiously affiliated employers in the states with coverage mandates have found ways to keep contraception out of their health plans. They can self-insure, putting themselves outside the reach of state regulation. But they can also benefit from exemptions or vague language in their state’s laws, or from indifferent enforcement by authorities.

Those avenues would almost certainly be closed by the new federal rule, which, beginning Aug. 1, will require new health plans to not only cover all Food and Drug Administration-approved forms of contraception and sterilization but also to do so without out-of-pocket charges to employees.

No wonder then that the outcry has been so much greater over the federal rule than over state laws, said Hannah Smith, senior counsel at the Becket Fund for Religious Liberty, a public interest law firm that is representing employers in three separate legal challenges to the federal rule.

Even in the states whose laws appear most strict, self-insurance isn’t covered, if the Post is right. And Aizenman lists other provisions of these laws, or of their enforcement, which allow Catholic institutions to ignore the mandate.

None of this has a thing to do with the merits of the proposed mandate, whether in its initial form or in the less restrictive form Obama proposed on February 10. (Repeat: None of this has a thing to do with the merits of the proposed mandate.) Aizenman’s report concerns something else—the accuracy of a factual claim which has been widely offered in the past three weeks.

Aizenman’s report is only a start. He doesn’t do a very good job explaining what happens in the eight states whose laws, on the surface, permit no exemptions. But other news orgs have twiddled their thumbs as the claim about the 28 states was widely offered. Yesterday, the Washington Post got off its big fat ass and offered some real reporting!

In our brave new liberal world, we liberals know where we can go to hear the factual claims we like. Conservatives have had this option for decades.

Our tribe is catching up fast. Is this a good way to do business?

Tomorrow: Printing the legends