Democrats Introduce Legislation to Address Contraception Access After ‘Hobby Lobby’

The legislation will not amend the Religious Freedom Restoration Act, as some advocates have called for. Instead, it will clarify that employers cannot use any federal law, including RFRA, to deny employees federally guaranteed health-care coverage under the Affordable Care Act.

Sen. Mark Udall (D-CO), co-sponsor of the Protect Women's Health from Corporate Interference Act, speaks at a press conference with other Democratic legislators and women's health advocates. Emily Crockett

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

Democrats in both chambers of Congress announced Wednesday that they will introduce legislation to protect women’s access to contraceptive care in the wake of the Supreme Court’s Hobby Lobby decision. 

The legislation will not amend the Religious Freedom Restoration Act (RFRA), as some advocates have called for. Instead, it will clarify that employers cannot use any federal law, including RFRA, to deny employees federally guaranteed health-care coverage under the Affordable Care Act. 

The Protect Women’s Health From Corporate Interference Act will be introduced in the Senate by Sens. Patty Murray (D-WA) and Mark Udall (D-CO), and in the House by Reps. Louise Slaughter (D-NY), Diana DeGette (D-CO), and Jerrold Nadler (D-NY).

The legislation will ban employers from refusing to cover any health care, including contraceptive coverage, that is guaranteed under federal law. It will state that no federal law, including RFRA, permits employers to refuse to comply with the Affordable Care Act’s birth control benefit, although it will leave in place the exemption for houses of worship and religious nonprofits that is already in the health-care law. 

The all-male, five-member majority of the Supreme Court used RFRA to rule in favor of Hobby Lobby, finding that the closely held corporation and others like it can exercise religious freedom by denying their employees insurance coverage for contraceptive care.

Democratic legislators and women’s health advocates decried the Court’s decision at a press conference on Wednesday morning. Not only was the decision handed down by an all-male majority, they said, but it also perverted the original intention of RFRA.

“The Religious Freedom Restoration Act was written for one reason—to protect employees’ freedom of religion,” said Boxer, who originally voted for RFRA in 1993. “The five Republican-appointed men on the Supreme Court decided in the Hobby Lobby case that the employer, the boss, has total power to deny critical medical care to employees. They turned the Religious Freedom Restoration Act on its head.”

Nadler, one of the chief RFRA sponsors in 1993, concurred. He said that RFRA was supposed to be used as “a shield to protect people’s religious liberties against impositions by government, not as a sword to impose somebody’s religious belief on somebody else.”

Murray noted that nearly two out of three women are against corporations interfering with their health-care plans because of the owners’ religious beliefs, and that women aren’t the only ones affected. “Men understand that it’s not just female employees, it’s the wives and daughters who share their health care plan too who are impacted,” she said. 

Ilyse Hogue, president of NARAL Pro-Choice America, said that the ruling amounted not just to a denial of benefits, but to discrimination against women and a “penalty” against women and families. 

DeGette said that the Court ruled Congress could act to ensure access for women whose employers object to the birth control benefit. But the Court’s majority opinion specifically referred to expanding the existing exemption that applies to houses of worship and religious nonprofits. This bill, instead, appears to be an attempt to “fix” an unfavorable Supreme Court ruling, similar to what happened with the Lilly Ledbetter Fair Pay Act of 2009. 

Legislators said that there are 35 to 40 Senators and counting who support the Senate version of the legislation. In the House, there are 60 co-sponsors, but neither chamber has the explicit support yet of any Republican legislators. DeGette said that she had spoken to Republican colleagues about the bill, however, and expressed confidence that more Republicans would sign on as they heard from their constituents. She noted that the House has managed to pass legislation lately that has both supported birth control and defeated cuts.

The bill is not generally expected to be taken up by the Republican-dominated House, but legislators and advocates expressed their intention to pressure Republicans on the issue.

“We fought hard for [the Affordable Care Act] as women, and for the benefits that women got, and we’re going to fight hard to protect them,” Cecile Richards, president of Planned Parenthood Federation of America, told Rewire. “And in November we’re going to tell the story—we could either go backwards, or we can move forward. For women, the Affordable Care Act is a huge win, and we shouldn’t be shy about it.”