Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
February 7, 2016

Senate Democrats Eye End Run Around Hobby Lobby Case (Updated)

(Tom Williams/CQ Roll Call File Photo)

(Tom Williams/CQ Roll Call File Photo)

Updated 2:19 p.m. | Senate Democrats plan to “fight” to ensure women retain access through their insurance to contraceptives, after the Supreme Court ruling in the Hobby Lobby case.

Iowa Democratic Sen. Tom Harkin said in a statement that while he certainly opposed the Supreme Court’s 5-4 opinion in Burwell v. Hobby Lobby that said closely held corporations did not have to provide contraceptive services as part of health insurance plans if they have religious exemptions, he noted the scope was somewhat narrow.

“I disagree strongly with today’s Supreme Court’s decision, which will limit access to critical preventive care for everyday working people in Iowa and around the country. I am heartened, however, that the Court’s narrow decision would not extend to other guaranteed health benefits from the Affordable Care Act such as blood transfusions and vaccinations,” the Iowa Democrat said in his statement.

“While the Supreme Court has ruled, this fight is far from over. Along with my colleagues in Congress, I am deeply committed to ensuring that all Americans — men and women alike — can get the health coverage they need, and we will be exploring legislative remedies to ensure that affordable contraceptive coverage remains available and accessible,” Harkin said.

Harkin is chairman of both the Health, Education, Labor and Pensions Committee and the Appropriations subcommittee that provides funds to the Department of Health and Human Services.

An early concrete legislative proposal came from the desk of Majority Whip Richard J. Durbin. The Illinois Democrat plans a bill that would require corporations denying insurance coverage to employees pursuant to the Hobby Lobby case to be disclosed.

“I will introduce legislation 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,” Durbin said in a statement. “Workers have a right to know if their employers are restricting the availability of a full range of family planning coverage.”

Majority Leader Harry Reid, D-Nev., signaled likewise in his own statement, without providing details.

“Today’s decision jeopardizes women’s access to essential health care. Employers have no business intruding in the private health care decisions women make with their doctors. This ruling ignores the scientific evidence showing that the health security of millions of American women is strengthened by access to these crucial services,” Reid said. “If the Supreme Court will not protect women’s access to health care, then Democrats will. We will continue to fight to preserve women’s access to contraceptive coverage and keep bosses out of the examination room.”

President Barack Obama wants Congress to pass a new contraception law to ensure women keep their coverage, although Press Secretary Josh Earnest said the administration may be able to act even without Congress.

Sen. Patty Murray, a member of the Democratic leadership, signaled in a statement she was open to both options.

“Your health care decisions are not your boss’s business – period. Since the Supreme Court decided it will not protect women’s access to health care, I will,” the Washington Democrat said in a statement. “In the coming days I will work with my colleagues and the Administration to protect this access, regardless of who signs your paycheck.”

Any legislative fix would face a huge hurdle — namely the seemingly universal praise for the decision from Republicans, including Speaker John A. Boehner, R-Ohio.

But in the majority opinion at the Supreme Court, Justice Samuel Alito seemed to open the door to HHS providing for the contraceptives to be covered through other means.

“HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases,” wrote Alito. “The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty… that this is not a viable alternative.”

Likewise, Justice Anthony Kennedy wrote a concurrence pointing to existing protocols for religious organizations.

“[I]n other instances the Government has allowed the same contraception coverage in issue here to be pro- vided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities,” Kennedy said. “The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.”

Steven T. Dennis contributed to this report.

 

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