Skip to main content

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.

White House, Democrats Plot Response To Supreme Court Hobby Lobby Ruling

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 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.

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.

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."

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.

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.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Thanks nt (2+ / 0-)
    Recommended by:
    DRo, Silencio

    I voted Tuesday, May 6, 2014 because it is my right, my responsibility and because my parents moved from Alabama to Ohio to vote. Unfortunately, the republicons want to turn Ohio into Alabama.

    by a2nite on Tue Jul 01, 2014 at 07:44:40 AM PDT

  •  Corporations are now Churches (3+ / 0-)
    Recommended by:
    a2nite, Sunspots, Silencio

    new work rule demands for prayer breaks and Sabbath requirements with pillars of salt in the company cafeterias

    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.

    Warning - some snark may be above‽ (-9.50; -7.03)‽ eState4Column5©2013 "If we appear to seek the unattainable, then let it be known that we do so to avoid the unimaginable." (@eState4Column5)

    by annieli on Tue Jul 01, 2014 at 07:47:31 AM PDT

  •  Would you point where Employer sponsored (2+ / 0-)
    Recommended by:
    Richard Lyon, Gooserock

    Health insurance came from?

    I know it has some tax benefits for the employer.

    I voted Tuesday, May 6, 2014 because it is my right, my responsibility and because my parents moved from Alabama to Ohio to vote. Unfortunately, the republicons want to turn Ohio into Alabama.

    by a2nite on Tue Jul 01, 2014 at 07:50:37 AM PDT

    •  It actually began during WW II (4+ / 0-)
      Recommended by:
      Catte Nappe, corvo, Sunspots, Silencio

      It was tied into the wage and price controls that were being used to control inflation in the wartime economy. At the time medical technology was still fairly limited so it didn't involve the huge costs that it does today. It seemed like a minor issue back then. In retrospect I'd say that it was an unfortunate choice. We now have a huge insurance industry with a vested interest in maintaining it.  

    •  WW2, Under Wage Freezes, It Was a Way for (4+ / 0-)
      Recommended by:
      a2nite, Catte Nappe, Sunspots, Silencio

      employers to compete with better benefits. Millions of workers had been hired away by the Pentagon; employers were even competing for women employees.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Tue Jul 01, 2014 at 07:59:37 AM PDT

      [ Parent ]

      •  I know you didn't mean it this way, Goose, but (1+ / 0-)
        Recommended by:
        Sunspots

        the language is peculiar... "even competing for women employees".

        It was a function of the times, but I am seeing it through eyes of my times. It's almost got a "isn't that amazing! EVEN women, the second class, were sought after".

        Not taking YOU to the woodshed, just jumped out at me when I read it. In historical perspective, I'm sure you are in sync.

        The only hawk I like is the kind that has feathers. My birding blogs: http://thisskysings.wordpress.com/ and canyonbirds.net

        by cany on Tue Jul 01, 2014 at 08:45:43 AM PDT

        [ Parent ]

  •  It started in ww2. It was an effort by companie... (0+ / 0-)

    It started in ww2. It was an effort by companies to retain the best workers they could find.

  •  Doesn't this create a big problem for Republicans? (4+ / 0-)

    It seems to me that if the Democrats pursue a legislative fix, then Republicans will be in a tough spot.  They can't vote for the legislation because it will appear that they support Obamacare and universal insurance coverage for birth control.  But if they vote against the legislation they will dig a much deeper hole with women.

    I'm sure many of you, like me, can't imagine that in this day and age birth control is controversial.  And I don't think it is, except for the religious far right that controls much of the Republican party.  But a vote to deny coverage of birth control would be a slap in the face to every woman in the country that would not be soon forgotten.

    •  I suspect that may be one reason (3+ / 0-)
      Recommended by:
      Catte Nappe, corvo, cany

      that Obama is more inclined to pursuing a legislative rather than an administrative approach this time.

      It would give the Republicans a difficult choice. There are women who support denying contraceptive coverage. They are in a minority but they do exist. Either way that Republicans voted on such a measure would cost them votes. The Democrats on the other hand have little or nothing to lose.

      •  I think there are a couple basis from which the (0+ / 0-)

        GOP/TP opposes birth control based on what I have read from their own pages:

        1. They simply oppose it. That's not a shocker to me given the anti-choice crowd has had this as a goal for many years.

        2. They are opposed to it being "free" from a TP/Libertarian pov as a matter of political philosophy, OR they see it as having to pay for someone else's birth control and they don't want to do that OR, for that matter, be forced into an insurance pool that pays for someone else's health issues... (meaning they just don't GET insurance of any kind in terms of how it works).

        3. Drown the government in the bath tub philosophy.

        All of them stink, of course.

        The only hawk I like is the kind that has feathers. My birding blogs: http://thisskysings.wordpress.com/ and canyonbirds.net

        by cany on Tue Jul 01, 2014 at 08:56:29 AM PDT

        [ Parent ]

  •  FIRST Dems have to understand the (3+ / 0-)
    Recommended by:
    Richard Lyon, corvo, Sunspots

    concept of separation of church and state!  And they don't! Obama has actually added to the atmosphere that created the Hobby Lobby decision by attending those Prayer Breakfasts sponsored by The Family; by having his Justice Dept come down on the absolute wrong side of every church/state case that has been raised under his Presidency; by having Rick Warren give an Inaugural mess of a "prayer"; by constantly talking about his own amazing love affair with Jesus; by funding faith based charities and allowing them to discriminate in their hiring (this has an eerie tie to the attitude of Hobby Lobby; by using the White House to conduct Passover Seders and Christian celebrations.... I could go on and on.

    The Dems in Congress have laid down every time some stupid attempt to insert "God" in government has come down the pike... the most recent being the FDR D-Day prayer being added to a memorial way after the fact of it's being built. (Others include defending "under God" in the pledge and whole host of other "commemorate Christian stuff" that most people don't even realized were passed (usually in the form of resolutions).

    So NOW they are worried about separation of church and state???? And NOW they see the connection between letting religion slip into the cracks and how it ALWAYS comes back to bite women???

    Sorry, but I don't see them as anything more than hypocrites when it comes to their "shock" over what SCOTUS has done.  

  •  Durbin bill is exactly right, it seems to me. (1+ / 0-)
    Recommended by:
    cany

    Seems like every employee has a right to know exactly what benefits her employer is, and is not, providing.

    If an employer is providing health insurance, that employee has a right to know the parameters of what that covers.  

    If the employee does not agree with the compensation (including the benefits) the employee should not be working there.

    •  I agree that they should be informed, but (3+ / 0-)
      Recommended by:
      a2nite, Sunspots, Tonedevil

      obviously, it doesn't solve the problem.

      What it might also indicate is that the company intends to run itself as a quasi religiously based company and I can tell you that I would want no part of THAT as an employee, birth control or not. It might indicate their feelings about lgbt employees, females in management etc.

      So yes, it's really important as part of the solution.

      The only hawk I like is the kind that has feathers. My birding blogs: http://thisskysings.wordpress.com/ and canyonbirds.net

      by cany on Tue Jul 01, 2014 at 08:49:39 AM PDT

      [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site