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Senate Mischief

Jul 28, 2014, Vol. 19, No. 43 • By TERRY EASTLAND
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On the topic of Burwell v. Hobby Lobby, the contraceptive mandate case decided on the last day of the recent Supreme Court term, the Democrats are fighting mad. They don’t like the decision. No, they despise it. Indeed, their rhetoric on Hobby Lobby has become so misleading, even strange, that the fact checkers at the Washington Post have felt compelled to call them to task, reminding the Democrats, among other things, that the decision does not outlaw contraceptives, and it does not allow bosses to prevent women from seeking birth control.

Reid

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The Democrats want to “negate” the ruling. But as the Senate bill that would achieve that goal makes clear—a meas-ure Majority Leader Harry Reid vows to keep pushing over the next two years—they want to do far more than that. They want to nullify religious freedom guarantees in the context of health care.

Hobby Lobby, you’ll recall, concerned the increasingly notorious Affordable Care Act, under which the Department of Health and Human Services has responsibility for determining what preventive care should be included in most employer-based health plans. The department decided that those plans should offer all 20 federally approved contraceptives. The department exempted from the mandate religious institutions (such as churches and synagogues) and, under pressure, offered an “accommodation” to religious nonprofits. Other employers were subject to the mandate, with refusal to comply resulting in hefty fines.

Hobby Lobby is neither a church nor a religious nonprofit but a closely held, for-profit company, and thus was obligated to carry out the mandate. But its owners believe that four of the mandated contraceptives induce abortion, which they oppose on religious grounds. Joined by another closely held company of the same mind on abortion, Hobby Lobby sued the government, arguing that the mandate violated the Religious Freedom Restoration Act of 1993, which requires federal statutes that “substantially burden” religion to be justified as the “least restrictive means” of achieving a “compelling governmental interest.”

A five-justice majority held that the mandate did constitute such a burden on religion in the cases under review, and that it was not the least restrictive means of achieving the government’s interest, since there already was a less restrictive one in play—the accommodation for religious nonprofits, under which the insurance company, not the employer or the insured employee, pays for the religiously objected-to contraceptives.

The “accommodation” alternative, under challenge in other court cases, would enable the government to meet its health care objectives while respecting the religious liberties of employers like Hobby Lobby, with all mandated contraceptive coverage still available—and at no cost to the insured, as promised in the ACA. So would the even less restrictive alternative, in which the government simply paid the bill.

But such arrangements are hardly acceptable to the Democrats. S 2578 applies to employers in general, forcing them to comply with the contraceptive mandate even if they have religious objections to any part of it. That would “negate” Hobby Lobby, but the bill goes much further. Employers would also have to comply with all present and future mandates, not just the one for contraception, since it would be unlawful for an employer “to deny coverage of a specific health care item or service” required under a federal statute or regulation. Were the government to add abortion to the list of “preventive services,” for example, no employer would have legal grounds to object.

One might think religious institutions and religious nonprofits would be unaffected by S 2578. But the bill must be read closely. Both the exemption from the mandate for the former and the accommodation for the latter are provided for through regulation; neither would survive the regulatory change this bill contemplates. All employers would be treated the same—no exemption or accommodation for any, even churches.

S 2578 states that it “shall apply notwithstanding any other provision of Federal law, including Public Law 103-141.” That public law, of course, is RFRA. And the reason it can be so easily ignored, apparently, is that “the Congressional intent in enacting” RFRA is “consistent” with the substance of S 2578. In other words, there is nothing in RFRA to protect religious liberty in the context of health care.

The intent of RFRA, however, as Justice Alito pointed out in his opinion for the majority in Hobby Lobby, was to expand protection for religious liberty, not contract it. The new law the Democrats are promoting would do the opposite. That is the debate the country should be having—whether the Democrats should be allowed to nullify a federal law that protects religious freedom. Republicans, especially those running for the House and Senate this fall and those with presidential ambitions, should be prepared to carry this argument, lest they wind up on the defensive again in another depressing installment of the so-called war on women.

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