I’m not sure whether the title of the bill just introduced by Senator Murray—the “Protect Women’s Health From Corporate Interference Act of 2014”—or its stated purpose—“[t]o ensure that employers cannot interfere in their employees’ birth control and other health care decisions”—is more misleading and contrary to values Americans hold dear. Perhaps they are equally wrong. But not only is this bill misleading, it is anti-constitutional and civil rights, anti-religion, anti-business, and anti-women. In all these areas, the bill is just downright discriminatory.
Anti-constitutional and anti-civil rights
When Congress overwhelmingly passed RFRA in 1993, it demonstrated support for robust Free Exercise rights by requiring the government to meet a high threshold before burdening Americans’ exercise of religion—a civil and constitutional right. RFRA is not just a statute. RFRA enshrined in law the high standard of strict scrutiny when measuring free exercise claims. For decades, courts had applied this standard. Only recently had its application been questioned by the Court’s Smith decision. Thus Congress passed a law providing a high bar for measuring constitutional rights in this area.
Senator Murray doesn’t seem to care about any of this. If she did, she wouldn’t try to denigrate constitutional rights by trying to pass a law which lowers constitutional protections for all Americans. Instead of using her Article I powers consistent with what Article III courts have said, she ignores the Supreme Court’s guidance and flouts the checks and balances the Constitution put in place.
But even if this anti-constitutional law managed to get out of Congress, President Obama would be foolish in signing it instead of just authorizing the drugs as suggested by the Court.
And even if this law passed, it would be subject to a challenge under the Free Exercise Clause. This bill’s overt and direct discrimination against religion—which is very obvious coming right on the heels of Hobby Lobby—obb
would not be permissible under the First Amendment. Page 8 of her bill says, “[t]his Act is intended to be consistent with the Congressional intent in enacting the Religious Freedom and Restoration Act of 1993 . . . .” In RFRA, Congress evinced the intent to proclaim a broad and robust vision of free exercise, and clearly intended to reinstate strict scrutiny as the standard for Free Exercise claims. Senator Murray can’t have it both ways. She can’t proclaim support for the congressional intent of RFRA while gutting a protection RFRA clearly put in place.
In its Hobby Lobby decision, the Supreme Court made abundantly clear that businesses could not deny access to contraceptives, but only that the government had to find a less restrictive means of ensuring this access than forcing unwilling businesses into providing it themselves. One less restrictive means would be for the government to directly provide this birth control. But rather than working with the government to ensure this happens, Senator Murray and her cohorts are still trying to ram the HHS mandate down business owners’ throats, despite the fact that this was already rejected by the Court in Hobby Lobby. Senator Murray doesn’t care about access. If she did, she would follow the Supreme Court’s guidance, which would ensure quickest access to birth control. Instead, her measure will fail for numerous reasons, and will only waste time she could spend on providing birth control to women—an issue she claims to care about.
Senator Murray goes out of her way to target religion in her bill. If she cared about access to contraceptives, she would work with the executive branch (which the Court explained could provide access) to provide these drugs. Instead, she has explicitly declared her antagonism to religion by opposing RFRA and the Court’s interpretation of RFRA for no reason related to “access” whatsoever—as access to these birth control methods can be provided other ways besides the HHS mandate. Instead, she wants to amend the law to achieve a result which has already been determined in violation of religious liberty by the Supreme Court. On page 6 of her bill, she claims that not covering contraceptives costs businesses more money. Why would she want to prevent businesses from incurring costs in order to remain true to their consciences? The only explanation is that she wants to force them to violate their consciences.
Plenty of women oppose the HHS mandate being used to stifle their religious exercise, and plenty of women judges agree that their claims have merit. 100 cases have already been filed against the HHS mandate. Many of the plaintiffs in these cases are women—women who run charities, like the Little Sisters of the Poor, but also women who run businesses. Nearly one-third of the business plaintiffs in these cases are women. In addition, women judges have voted to halt implementation of the mandate 24 times. In only 15 cases have they voted in favor of the employer mandate. Finally, more women oppose the mandate than support it in poll after poll across the United States.
How can Senator Murray and this bill’s supporters claim to be supporting women when they are directly opposing the sincere religious claims of so many American women?