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From The Progressive Populist

The infamous Hobby Lobby decision satisfied nobody. On June 30 five old men on the Supreme Court decided that corporate owners can overrule physicians and insurance regulators over whether their female employees can receive contraceptive treatment.

The court majority agreed with attorneys for Hobby Lobby Inc. and other bosses who claim that the contraceptive “mandate” imposed by the US Department of Health and Human Services as part of the Affordable Care Act was a “substantial burden” on the religious freedoms of their closely-held corporations and violates their rights under the Religious Freedom Restoration Act of 1993.

As Justice Ruth Bader Ginsburg wrote in her dissent, there is no precedent on behalf of the majority’s assertion that secular, for-profit corporations can be “persons” under RFRA. “The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities,” she wrote.

The Hobby Lobby ruling, written by Justice Samuel Alito, seemed to allow closely-held corporations to object to four specific types of birth control — including IUDs and Plan B — because the business owners inaccurately if sincerely consider them to cause abortion. (The contraceptives at issue prevent a fertilized egg from implanting into the lining of the uterus. A woman is not considered pregnant until the developing embryo successfully implants in the lining of the uterus. The only drug approved to induce abortion is RU-486 and it is not on the FDA’s list of approved contraception.)

A day after Hobby Lobby, the Court’s resolve began to crack. On July 1, the court indicated that its ruling also applies to for-profit employers who object to any of the 20 forms of birth control included in the ACA’s contraceptive mandate, not just the four methods at issue in the Hobby Lobby case. The Court ordered three appeals courts to reconsider cases in which they had rejected challenges from corporations that object to providing insurance that covers any contraceptive services at all.

And the Court in the Hobby Lobby case seemed to validate the ultimate goal of providing contraceptives when Justice Alito wrote for the majority that the government had to use the “least restrictive alternative.” That means that if there is a less burdensome way to implement the law, it needs to be used. The majority pointed to a workaround the administration had come up with to accommodate religious nonprofits. If there are objections to a medical treatment, third parties will provide coverage to the employees.

In case of contraceptives, the nonprofits must fill out a document that declares that paying for any or all of the 20 devices and methods approved by government regulators would violate their religious beliefs. Then their insurers or third-party administrators would take on the responsibility of paying for the birth control, and would get reimbursed by the government through credits against fees owed under other parts of the health law.

But many groups still object that filling out the government Form 700 is akin to signing a permission slip for evil activity.

In an unsigned order issued July 3, moments before they adjourned for their summer recess, the Court suggested that the nonprofit workaround might also be unconstitutional. “Overnight, the cure has become the disease,” Dahlia Lithwick and Sonja West wrote in Slate.com (July 4). “Having explicitly promised that Hobby Lobby would go no further than Hobby Lobby, the court went back on its word, then skipped town for the summer.”

In the new case, the Court granted Wheaton College, a Christian college in Illinois, a temporary exemption from the requirement that it use Form 700. The Court said the interim order would not affect the ability of employees and students to obtain, without cost, the full range of FDA approved contraceptives, since the government already knew the college objected.

More than four dozen faith-affiliated charities, colleges and hospitals that oppose some or all contraception as immoral have filed lawsuits to relieve them of the obligation to pay, even indirectly, for birth control.

“Anything that forces unwilling religious believers to be part of the system is not going to pass the test,” Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, which represents many of the faith-affiliated nonprofits, told the Associated Press. Hobby Lobby Inc. also is a Becket Fund client.

The Supreme Court will be asked to take on the issue in its next term, which begins in October.

The Wheaton College injunction drew a furious reaction from the three female Justices, Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan. “Those who are bound by our decisions usually believe they can take us at our word,” Justice Sotomayor wrote in the dissent. “Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates [the Religious Freedom Restoration Act] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position.”

The Court’s action, she added, even “undermines confidence in this institution.”

Justice Sotomayor wrote that the majority, which acted on an emergency application, had not only introduced pointless complexity into an already byzantine set of regulations but had also revised its Hobby Lobby decision.

Justice Sotomayor said the ruling reached beyond Wheaton and could lead to similar results at many other nonprofit religious organizations that have similar concerns. “The issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedy,” she wrote.

“Not everyone was fooled by the majority’s promise that the decision in Hobby Lobby was narrow,” Lithwick and West wrote. “But the speed with which the Court has loosened the dam on this is stunning. While the court has told us that we are not allowed to question the sincerity of corporations’ professed religious beliefs, we remain free to question the sincerity of the Court’s pinky promise that the Hobby Lobby decision would have a limited scope. At the end of this term, many people sighed a breath of relief that the outcome of Hobby Lobby was not as bad as we’d feared. It will be.”

Senate Democrats have floated a bill to reverse the Hobby Lobby decision, but in the face of Republican intransigence they might as well move toward single-payer health coverage so that businesses and religious organizations don’t have to worry about being complicit in the medical procedures their employees get.

There are bills in Congress, including Rep. John Conyers’ longrunning HR 676 and Sen. Bernie Sanders’ S 1782, that would expand Medicare to cover everybody, but they are given practically no chance of going anywhere. However, the Affordable Care Act allows states to seek waivers to implement their own single-payer plans starting in 2017. Vermont has enacted such a plan and is working on its Green Mountain Care, with the main challenge being how to pay for the estimated $2 billion cost (which would still be less than the $2.5 billion Vermonters pay in private premiums and out-of-pocket for health care).

To get the waiver, a state must demonstrate that its public option would provide coverage at least as good, for at least as many people, as the ACA would, and not add costs to the federal budget. The federal government would provide funds to the state that equal what it would spend under the ACA. See Public Citizen’s “Road Map to ‘Single Payer’”.

Ultimately, with the court teetering on a 5-4 balance, the threadbare Hobby Lobby decision underscores the importance of Democrats keeping control of the Senate this November. The right vacancy on the court in the next two years could clear the way to reverse a decade of bad decisions. But not if Sen. Charles Grassley (R-Iowa) is Judiciary chairman.

See the editorial at The Progressive Populist. Reprinted with permission.

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Comment Preferences

  •  Thank you Hobby Lobby for... (4+ / 0-)

    ...giving the Single Payer movement a boost.


    Single payer final destination photo b80a2441-25b2-4674-a969-f62600aef8a1_zps0df8272b.png

    Daily Kos an oasis of truth. Truth that leads to action.

    by Shockwave on Sun Jul 13, 2014 at 04:37:06 PM PDT

  •  Control of the Senate (0+ / 0-)

    I agree with you that it's critical for Democrats to maintain control of the Senate in the November elections.

    However, if we don't, it's not the end of the world.

    First -- if the GOP wins the Senate, their margin will be only 51-49. 52-48, or 53-47.

    Second -- in 2016, TWENTY-THREE GOP Senators will be up for re-election and their 2014 gains will be wiped out and then some.  

  •  This is a lie, and it's about time it be (0+ / 0-)

    recognized as such:

    On June 30 five old men on the Supreme Court decided that corporate owners can overrule physicians and insurance regulators over whether their female employees can receive contraceptive treatment.
    •  Technically... (0+ / 0-)

      yer right.  They did not rule on whether anyone could receive contraceptive treatment.

      They did rule in a way to make that more difficult than necessary.

      "...we live in the best most expensive third world country." "If only the NEA could figure out all they have to do is define the ignorance of the next generation as a WMD..." ---Stolen from posts on Daily Kos

      by jestbill on Sun Jul 13, 2014 at 08:30:40 PM PDT

      [ Parent ]

  •  As Jesse Jackson said in 2000: (1+ / 0-)
    Recommended by:
    Mopshell
    The three most important reasons to vote Democratic are the Supreme Court, the Supreme Court, and the Supreme Court.

    "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

    by HeyMikey on Sun Jul 13, 2014 at 08:19:38 PM PDT

  •  The entire Heritage strategy (3+ / 0-)
    Recommended by:
    Jon Says, doh1304, Mopshell

    which the Democrats accepted by adopting the Heritage scheme, was to preclude there from EVER being single-payer in the US.  The Heritage plan did so by giving the private insurance industry hundreds of billions of taxpayer incentives not to allow there to ever be a single-payer program adopted.  Smart and straight-forward from a corporate point of view, you can be quite sure that the private industry will fight  intensely to maintain its hold on all those taxpayer dollars.  Much moreso than if we'd attempted to move directly to single-payer from the status quo ante.  I don't believe there is now any chance at all that the industry will ever let go of the financial advantages Heritagecare vests in them.  That is WHY Heritage devised the plan as they did, to ensure its permanent profitable privatization.  That's their ideological raison d'etre.  Or maybe people think the Heritage Foundation isn't all about the big bucks?  Heh.  No telling what people might believe if it suits their fancy.  But follow the money.

    Pay no attention to the upward redistribution of wealth!

    by ActivistGuy on Sun Jul 13, 2014 at 08:59:56 PM PDT

  •  It will happen. (0+ / 0-)

    Having watched this debate happen over the past few years, I think single payer is coming and there isn't anything Republicans can do to stop it. Even IF the Republicans win the Senate in 2014, it is highly unlikely they will get a veto-proof majority. They'll continue to waste time trying to repeal the ACA.

    With Republicans left without a boogeyman to fight in 2016, and having wasted their time butting their heads against the wall, there will be a huge opportunity for Democrats to take the House and maintain/take the Senate. Same with the presidency.

    Meanwhile, the number of beneficiaries/supporters of the ACA will continue to grow and the problems with the program will make themselves known. This will allow for a bigger stage for the push for single payer in order to fix the system.

    With a continuous effort on our part, we could be looking at having single payer passed into law sometime in 2017.

    •  On the other hand... (0+ / 0-)

      if they have any kind of majority in the Senate, they'll spend two years trying to get rid of the President and VP with the complicity of SCOTUS so the Speaker of the House can take over. I wonder what laws we'd get if that ever happened...

      Please note that lamps in the Magic Lamp Emporium are on a genie time-share program so there may be a slight delay in wish fulfillment. (◕‿◕)

      by Mopshell on Mon Jul 14, 2014 at 04:57:20 AM PDT

      [ Parent ]

      •  I disagree (0+ / 0-)

        For the sake of argument, let's say they do go that route. Obama is impeached and removed from office. They have absolutely nothing on Biden, and he would assume the presidency at the start of campaign season and with two possible terms ahead of him.

        As for Boehner, I think this is one of those times where the opposition (Tea Party) becomes an ally. They would not stand for John Boehner becoming president and would probably take down the Republican party if it tried.

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