Democrats in the House and Senate will unveil legislation that would reverse the immediate effects of Burwell v. Hobby Lobby and force closely held corporations to provide contraceptive coverage to employees regardless of whether the owners object.
A common misconception about the case is that the Court ruled the Affordable Care Act violated the religious freedom precepts laid out in the Constitution by requiring contraceptive coverage. It clearly didn’t—rather, the Court’s five conservatives ruled it violated the 1993 Religious Freedom Restoration Act, which forbid the federal government from “substantially burden[ing] religious exercise without compelling justification.”
All it would take, then, to undo the immediate effects of the ruling would be for Congress to go back and pass legislation overriding the RFRA.
That’s what Democratic Senators Patty Murray, Mark Udall and Dick Durbin are proposing to do with their bill unveiled Wednesday morning, the Protect Women’s Health from Corporate Interference Act. In the House, Representatives Louise Slaughter, Diana DeGette and Jerrold Nadler have a companion bill with the same name.
The legislation would explicitly forbid employers from refusing to offer health coverage, including contraceptives, that is otherwise guaranteed by federal law, and would make explicit that the RFRA cannot override the Affordable Care Act. It would still allow exemptions for houses of worship and religious non-profits.
“After five justices decided last week that an employer’s personal views can interfere with women’s access to essential health services, we in Congress need to act quickly to right this wrong,” said Murray. “This bicameral legislation will ensure that no CEO or corporation can come between people and their guaranteed access to health care, period. I hope Republicans will join us to revoke this court-issued license to discriminate and return the right of Americans to make their own decisions, about their own health care and their own bodies.”
The immediate prospects of the legislation are fairly dim: or rather, it is certainly dead on arrival in the Republican-controlled House, and faces a tough path in the Senate, where it will come for a vote next week.
But the idea is to begin legislative momentum now for an eventual reversal of the RFRA—and in the meantime, put Republican Senators on the record now about whether they think corporate executives should be making healthcare decisions for their female employees.