Senate Democrats are sick: the Supreme Court’s recent Hobby Lobby decision has afflicted them with a case of legislative buyer’s remorse.
Their party helped push through the Religious Freedom Restoration Act (RFRA) of 1993. What the Democrats never saw coming was the way the RFRA would be used by the court’s conservative justices to justify a 5-4 ruling allowing corporations to claim a religious exemption from covering birth control for their employees as mandated by the Affordable Care Act.
On Wednesday, 41 Senate Democrats introduced new legislation that aims to reverse the Supreme Court’s decision. The Protect Women’s Health from Corporate Interference Act would restore the contraceptive coverage requirement.
“People across the country understand that if bosses can deny birth control, they can deny vaccines, HIV treatment, or other basic healthcare services for employees and their dependents,” Sen. Patty Murray (D-Wash.), one of the bill’s chief sponsors along with Sen. Mark Udall (D-Colo.), told VICE News.
Murray and Udall wrote in a summary of the new bill that, rather than protect freedom of religion, the Hobby Lobby decision allows employers to impose their religious beliefs on employees.
“Just because someone accepts a job does not mean that they have checked their rights to religious liberty at the office door,” the summary says.
The act, touted on Twitter as the #NotMyBossBusiness bill, would ban employers from denying any insurance coverage that is mandated by federal law, including contraceptive coverage.
The bill also attempts to clarify what is and isn’t covered by the RFRA, which was highly cited by the Supreme Court in the Hobby Lobby ruling on the understanding that the law extends religious liberty to corporations as well as individuals. As the court noted, corporations are people too according to the Dictionary Act of 1871.
Ilyse Hogue, president of NARAL Pro-Choice America, said in a statement today that 99 percent of sexually active, adult American women have used birth control.
“If there’s one thing we can agree upon more than the idea that politicians aren’t equipped to decide for us how and when and with whom we have families, it’s that our bosses are even less so,” said Hogue. “This bill is the first step in making sure those personal healthcare decisions stay where they belong — in the hands of the women whose lives are affected.”
New York Democrat Charles Schumer, who introduced the Religious Freedom Restoration Act back in 1993, was among the senators introducing the new bill. He has especially regretted how the court applied the law that he sponsored in its Hobby Lobby decision, which he has called “dead wrong.” Schumer had intended for the RFRA to protect the religious practices of groups on the periphery. A major RFRA case found that a New Mexico branch of the Brazilian União de Vegetal church’s ritual use of ayahuasca — a Schedule I controlled substance — was religiously protected under the law.
The RFRA “was not intended to extend the same protection to for-profit corporations, whose very purpose is to profit from the open market,” Schumer said in a statement.
The court’s ruling applies only to corporations that are considered “closely held,” i.e., family businesses. But Congresswoman Nancy Pelosi (D-Cal.), the House minority leader, pointed out a central flaw in that definition: over 90 percent of US corporations are considered closely held. For a company to be “closely held,” over 50 percent of a its stock has to be owned directly or indirectly by five or fewer people at some point in the last half of the tax year.
According to the Becket Fund, Hobby Lobby’s legal team, the company’s owners only oppose four forms of contraception that they say violate their belief that life begins when an egg is fertilized.
“The Green family has no moral objection to the use of 16 of 20 preventive contraceptives required in the mandate, and Hobby Lobby will continue its longstanding practice of covering these preventive contraceptives for its employees,” attorneys from the Becket Fund told VICE News in a statement.
But critics say that an employer’s moral objections could differ from those of their employees — and, Murray pointed out, from the family members of those employees.
Murray told VICE News that the Hobby Lobby ruling wouldn’t just affect female employees, noting that male employees recognize that the decision also affects the wives and daughters who share their healthcare plan.
Follow Mary Emily O’Hara on Twitter: @maryemilyohara