News Column

Women's Groups Want Congress to Nullify Hobby Lobby Ruling

July 9, 2014

Tresa Baldas, Detroit Free Press

July 09--When it comes to birth control coverage, the U.S. Supreme Court doesn't get the final say -- at least that's what women's rights groups and certain members of Congress are hoping.

They claim they have a trump card -- legislative action -- and it just got played.

Two U.S. senators from Washington and Colorado introduced legislation today to undo the landmark Hobby Lobby ruling that lets certain employers opt out of paying for birth control on religious grounds. U.S. Sen. Carl Levin (D-Mich.) is a co-sponsor of the bill, known as Protect Women's Health from Corporate Interference Act, which would reinstate access to birth control coverage for women at certain private companies.

Those companies are "closely held" corporations, which the U.S. Supreme Court has decided don't have to pay for contraceptives if doing so violates their religious beliefs.

U.S. Sen. Debbie Stabenow lambasted the ruling, and has vowed to help overturn it.

"The Supreme Court's decision in the Hobby Lobby case is outrageous," Stabenow said in a statement to the Free Press. "I am eager to work with my colleagues to make sure that women are making health care decisions in consultation with their doctor, not their employer."

The proposed legislation is exactly what a coalition of women's groups were hoping for following the June 30 decision that exempted certain private businesses from having to pay birth control that's mandated by the Affordable Care Act.

"Congress can fix this," said Brigitte Amrii, a senior staff attorney with the ACLU's Reproductive Freedom Project in New York, which is lobbying for legislative action along with Planned Parenthood, the National Women's Law Center and the National Partnership for Women and Families.

"There is a history of Congress fixing Supreme Court decisions. And this is a perfect example where we think Congress can pass a new law, something as simple as ... employers have to cover all health care that's required under federal law," said Amrii, stressing birth control must be included. "We think Congress should say, 'No, employers. We mean it. You need to cover contraceptives' "

But passing a new law may prove to be tough, especially in the Republican-controlled House, where numerous lawmakers joined religious and business groups in praising the Hobby Lobby decision. They said the U.S. Supreme Court got it right when it ruled in favor of arts-and-crafts retailer Hobby Lobby, whose Christian owners objected to paying for morning-after pills and IUDs, which are mandated for coverage by the Affordable Care Act. Companies that ignore the mandate face hefty fines.

These fines have drawn the ire of many Republicans, including Michigan lawmakers U.S. Rep. Candice Miller and U.S. Rep. Fred Upton, who saw the Hobby Lobby decision as "a welcome victory for religious freedom."

"Our government should not force anyone to make a choice between violating their conscience or paying steep fines and potentially facing bankruptcy," Upton said in a statement. " 'Fines on faith' are against the American way, and we are pleased ... that the Supreme Court has protected this right and also protected the thousands of jobs threatened by the HHS mandate."

1993 law at issue

The U.S. Supreme Court based much of its decision on the 1993 Religious Freedom Restoration Act, which passed with overwhelming support in the House and Senate.

That's law that the ACLU and women's groups want Congress to change, either by passing a new law, or amending that one.

The Religious Freedom Restoration Act requires federal laws to accommodate individuals' religious beliefs unless there is a compelling government interest at stake that can't be attained through other means. It reads: "Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest."

The U.S. Supreme Court held that Hobby Lobby's owners were substantially burdened for their religious beliefs -- millions of dollars in fines for refusing to pay for contraceptives -- and that such fines were unreasonable.

Opponents disagree, arguing the 1993 law is being misused and needs tinkering.

One day after the Hobby Lobby ruling, the Center for American Progress issued a report proposing that Congress introduce legislation to amend the act to make sure that religion is not used as a tool to discriminate or deny medical care.

"Congress should clarify that RFRA should not be used as an excuse for forcing an employee to adhere to the religious beliefs of their boss," said Carmel Martin, executive vice president of policy at the Center for American Progress and a co-author of the report. "RFRA was designed to protect an individual's right to believe according to one's conscious while maintaining the freedom of others to live their lives as they choose."

Rana Elmir, deputy director of the ACLU in Michigan, where six companies are challenging birth control coverage on religious grounds, agreed.

"The Supreme Court has set a dangerous precedent by giving companies a license to discriminate on the basis of religious beliefs," Elmir said. "However, the fight isn't over. Congress can immediately stop the impact of this ruling by fixing the law that the Supreme Court relied on."

It's been done before.

Hobby Lobby, meet Lilly Ledbetter

For 10 years, Lilly Ledbetter fought in the courts over her paycheck. The men she worked with for nearly two decades at Goodyear Tire & Rubber Company in Alabama got paid more than her -- which she didn't know for years -- so she sued for gender pay discrimination.

Ledbetter won a jury verdict of more than $3 million. But in 2007, the U.S. Supreme Court ruled against her, concluding she took too long to file her lawsuit and that she should have filed her suit within six months of getting her first unfair paycheck.

Two years after the Supreme Court ruling, Congress passed the Lilly Ledbetter Fair Pay Act, which nullified the high court's decision. It reinstated prior law and made clear that pay discrimination claims on the basis of sex, race, national origin, age, religion and disability "accrue" whenever an employee receives a discriminatory paycheck.

Amiri of the ACLU is hoping for a similar outcome in the birth control battle.

"In the case of Hobby Lobby," Amiri said, "the Supreme Court doesn't get the last word."

Contact Tresa Baldas at tbaldas@freepress.com

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(c)2014 the Detroit Free Press

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Original headline: Women's groups want Congress to amend law to nullify Hobby Lobby ruling


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