In the wake of yesterday's ruling that certain corporations can be exempted from paying for contraceptive coverage in their insurance plans on the basis of religious beliefs the White House and Democrats in congress are actively looking for options that could mitigate the impact on women employees. The effort was actually underway before the decision came down in anticipation of an adverse decision.
There are at least four types of regulatory or legislative fixes that Democrats might pursue. One would be to write a new regulation requiring an insurer to cover the cost of contraception that the corporation claiming a religious objection refused to cover. The second would be to have the government, in some fashion, cover the cost of that contraception. The third would be to amend the Religious Freedom Restoration Act (which was the basis of Hobby Lobby’s successful lawsuit) to specify that corporations are not granted certain protections given to individuals and others. The fourth would be to amend the statute in the opposite direction, by adding explicit language protecting individuals from having employers' religious beliefs imposed on them.The core legal problem is the RFRA. It was passed in 1993 by a large bipartisan majority and signed into law by President Clinton. It was later found unconstitutional to impose its provisions on state and local government so it only applies to activities of the federal government. Up until now its impact had been relatively limited and its provisions obscure. Even if the administration comes up with ways of restoring contraceptive coverage without an amendment to the RFRA, one can be fairly certain that this SCOTUS ruling will embolden the religious right to find other ways to make the law a useful tool for their purposes.
The last option is being pushed by the Center for American Progress, a think tank closely aligned with the Obama White House. But Obama administration officials are hesitant to pursue a response that would amend the Religious Freedom Restoration Act, wary of the unintended repercussions. Their preference is to simply restore the health care benefits lost in the Hobby Lobby decision and to do so through legislation as opposed to executive action.
It appears that the court majority was making the assumption that the administration could use the same administrative approach that they devised for employees of non-profit religious organizations.
Justice Anthony Kennedy, in his concurrence on the Hobby Lobby decision, implied that the government could solve the issue by extending coverage through a change in regulatory language. The Obama administration previously did as much for religiously affiliated nonprofit groups when it said that such employers who oppose covering contraception services could offload the cost onto insurance companies. As Kennedy wrote, there is "an existing, recognized, workable, and already implemented framework to provide coverage" for birth control where employers won't.One way to look at this is that Obama in his effort to avoid a confrontation with church groups established a precedent that is now being applied to a larger group of employers. It appears at present that the administration is looking for congressional action to establish such a provision rather than use administrative regulation as they did before. It is not clear why they are focused on this route. It is clear that any such legislation would face difficulty in making it through the Republican controlled house.
One small but useful response has already been introduced.
Sen. Dick Durbin (D-Ill.) announced Monday that in light of the Hobby Lobby ruling, he will introduce a bill that "requires all corporations using this Supreme Court decision to deny or limit contraception services to disclose this policy to all employed and applicants for employment."The courts action raises many serious issues and quite possibly opens to door to even more problems. However, there is an urgent need to find ways to assure that the decision does not result in women being denied necessary and appropriate health care. It does appear that there are possible avenues for accomplishing that.
A Senate Democratic aide confirmed to The Huffington Post that this Durbin bill is different from the main legislation that the party will introduce in response to the court's decision. That bill will likely be much broader in scope.