Senate Republicans on Wednesday blocked the passage of legislation aimed at curtailing some of the ramifications of last month’s Supreme Court ruling on Burwell v. Hobby Lobby (formerly, Sebelius v. Hobby Lobby), which ruled that under the Religious Freedom Restoration Act, closely-held corporations are exempt from legislated actions that would conflict with the company’s religious freedoms if less restrictive means of achieving the challenged legislation’s goals are available.
The decision was made based on a challenge to the Patient Protection and Affordable Care Act by Hobby Lobby Stores, Mardel Christian and Education Supply, and Conestoga Wood Specialities, on the grounds that forcing employees to participate in cost-sharing for contraception the companies are opposed to is immoral and in violation of existing law.
Hobby Lobby and Mardel Christian and Education Supply are both owned by the evangelical Christian family of David Green, who are major backers of the National Christian Charitable Foundation. The foundation had previously backed Arizona SB 1062, which would have allowed any individual or business the right to be exempted from any state law that burdened the individual’s exercise of religion, and supported the Alliance Defending Freedom, a major opponent of homosexual marriage, adoptions and rights.
Conestoga Wood Specialities is owned by the Mennonite Hahn family. While some Mennonite communities are somewhat progressive — with some even embracing the LGBT community — most still see abortion as a violation of their religious stance toward peace and the sanctity of human life. The Affordable Care Act’s funding of emergency contraceptive pills and intrauterine devices that would prevent a fertilized ovum from implanting onto the uterine walls is considered tacit approval of a perceived form of abortion.
The Senate bill, introduced by Sens. Patty Murray of Washington and Mark Udall of Colorado, would strip companies of the prerogative to opt out of contraceptive coverage. The Supreme Court ruling makes the assumption that employer-health insurance plan providers would be obligated to provide contraceptive coverage to the insured workers, even if the employer is not involved in the cost-sharing. The Department of Health and Human Services would be required to compensate the insurance companies for the portion of the coverage opted out of by the employer.
Democrats argue that the Supreme Court ruling unduly strengthens the argument of corporate personhood by extending to them religious protection. The Democrats also propose that the ruling skirts abortion and birth control laws by giving employers the right to say they oppose their employees taking such actions. It can be argued that by protecting these businesses’ religious rights, the Supreme Court actively challenged the employees’ civil rights, saying — in a de facto manner — that the businesses’ rights take supremacy to the employees’ rights.
The most stern criticism of the decision came from Justice Ruth Bader Ginsburg’s dissent, in which she warned that the Supreme Court “has ventured into a minefield” with this decision. As the notion of “a less restrictive alternative” is not written into the law, the associate justice foresees future cases where this principle may be used to defray unpopular requirements and force the federal government to compensate for the loss in the name of religious protection. For example, an employer who feels that it is religiously oppressive to pay his employees a minimum wage may argue before the courts that the use of the Earned Income Credit and other “social safety net” programs offer a “less restrictive alternative.” Similarly, an employer who wishes to terminate an employee for his or her sexual orientation can argue that the government hiring the employee or offering him or her job placement is a “less restrictive alternative.”
While the majority decision in Burwell v. Hobby Lobby restricted the ruling to cases involving the Affordable Care Act and closely-held companies, the view that the Supreme Court failed to test the notion of if the religious challenge Hobby Lobby and the other plaintiffs claim to have endured constituted a “substantial burden” on the companies’ religious freedoms and that the majority decision did not take into consideration the burden of the affected third parties suggest that the Supreme Court ruled more to protect corporate religious freedom than to enforce the Religious Freedom Restoration Act. This had led many to speculate that the Supreme Court may be willing to support other challenges to standing law based on religious principle or political posturing.
The bill failed to clear the automatic filibuster, 56-43. Three Republicans — Sens. Susan Collins of Maine, Mark Kirk of Ill. and Lisa Murkowski of Alaska — broke with the party and voted yes. Republicans argue that the Supreme Court decision points out that the Affordable Care Act is flawed and needs to be stricken down, and that in practical terms, the ruling has no effect on women’s access to health care, as the insurers still have to grant access to contraceptive methods.
As Sens. Kelly Ayotte (R – N.H.) and Deb Fischer (R – Neb.) wrote in a Wednesday Wall Street Journal op-ed, all the ruling really did was spare religiously-held companies from bearing moral responsibility for supporting methods that “would compromise their deeply held religious belief that life begins at conception.”