Exclusive: Democratic senators file amicus brief in Hobby Lobby birth control case

Liz Goodwin, Yahoo News
Yahoo News
FILE - This May 22, 2013 file photo shows customer at a Hobby Lobby store in Denver. The Supreme Court has agreed to referee another dispute over President Barack Obama's health care law, whether businesses can use religious objections to escape a requirement to cover birth control for employees. The justices said Tuesday they will take up an issue that has divided the lower courts in the face of roughly 40 lawsuits from for-profit companies asking to be spared from having to cover some or all forms of contraception. The court will consider two cases. One involves Hobby Lobby Inc., an Oklahoma City-based arts and crafts chain with 13,000 full-time employees. Hobby Lobby won in the lower courts. (AP Photo/Ed Andrieski, File)
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This May 22, 2013, photo shows customers at a Hobby Lobby store in Denver. The Supreme Court has agreed to referee another dispute over President Barack Obama's health care law, whether businesses can use religious objections to escape a requirement to cover birth control for employees. The justices said Tuesday they will take up an issue that has divided the lower courts in the face of roughly 40 lawsuits from for-profit companies asking to be spared from having to cover some or all forms of contraception. The court will consider two cases. One involves Hobby Lobby Inc., an Oklahoma City-based arts and crafts chain with 13,000 full-time employees. Hobby Lobby won in the lower courts. (AP Photo/Ed Andrieski, File)

In a brief filed with the U.S. Supreme Court on Tuesday, 19 Democratic senators are siding with the Obama administration against evangelical Christian businessmen who argue that paying for their employees’ birth control, a requirement under Obamacare, violates their company’s religious freedom.

The senators—five of them women—argue in their “friend of the court” brief that the owners of the Oklahoma-based crafts store chain Hobby Lobby are not exempt from the Affordable Care Act’s contraceptive mandate simply because some forms of birth control offend their religious beliefs.

Hobby Lobby’s owners, David Green and his family, are suing the federal government over the mandate, which says large employers’ insurance plans must offer birth control without co-pays or else face steep fines.

A lower court upheld the Greens’ case, ruling that the 1993 Religious Freedom Restoration Act (RFRA) protects the Greens from having to adjust their insurance plans to cover contraception for their 13,000 employees. (RFRA says the government must have a compelling reason to infringe upon an individual’s religious beliefs, and that laws that do so must be narrowly tailored.)

The case is novel because religious freedom, enshrined in the First Amendment, typically has been thought to apply to individuals, churches and other religious nonprofits—not corporations. But the U.S. Court of Appeals for the Tenth Circuit, siding with Hobby Lobby, said the Supreme Court’s Citizens United decision in 2010 , which upheld a free-speech right for corporations, conferred a right to religious expression on businesses.

The 19 senators—all of whom voted for the popular RFRA in 1993—argue that the law’s religious protections were never intended apply to a for-profit company. Hobby Lobby’s “gross misapplication” of the law perverts Congress’ intent in passing it, they write in the brief, which was obtained by Yahoo News.

Congress intended RFRA to protect individuals and non-profits from government interference in their religious beliefs, and explicitly left out for-profit companies from its protection, they write. The Democratic senators argue that a decision in favor of Hobby Lobby would allow “a secular, for-profit corporations’ shareholders, through the corporation, to impose their religious beliefs on their employees and to deny employees health benefits and rights to which they are entitled.” 

The case, which the Supreme Court will consider on March 25 and likely decide by June, is just one front in a widening war between Democrats and Republicans over gender and reproductive issues. Democrats have seized upon Republican opposition to the contraceptive mandate as proof that Republicans are waging a “war on women.” Some Republicans, meanwhile, say the mandate panders to women, as well as infringes on employers’ religious liberty. Just last week, former Arkansas Gov. Mike Huckabee told a cheering audience at a Republican National Committee meeting that Democrats “insult the women of America” with the mandate, which he said suggested the government thinks women “cannot control their libido.”

Sen. Patty Murray of Washington, a Democratic senator who led the amicus brief effort, is planning to criticize Huckabee and other Republican opponents of the mandate in remarks on the Senate floor tomorrow announcing the brief.

“Allowing a woman’s boss to call the shots about her access to birth control should be inconceivable to all Americans in this day and age, and takes us back to a place in history when women had no voice or choice,” Murray will say, according to prepared remarks provided by her staff.

The case is the second big challenge to President Barack Obama’s signature legislative achievement to reach the Supreme Court in two years. The government fought back a challenge to the heart of the health care law, the individual mandate, in a split decision authored by Justice John Roberts in 2012. One of the lawyers who argued against the individual mandate then, Paul Clement, has joined Hobby Lobby’s legal team.

Meanwhile, cases brought by dozens of religiously affiliated non-profits against the birth control mandate are also likely to reach the Supreme Court soon. Last week, the justices ruled that a non-profit group of Catholic nuns does not need to comply with the mandate while their legal challenge is pending. 

The Greens do not object to providing most birth control pills to their employees, but do not want to provide intrauterine devices (IUDs) and the so-called morning after pill. Neither contraceptive causes abortion, but they may prevent fertilized eggs from implanting in the uterus, which the Greens consider tantamount to abortion.

If the Supreme Court were to side with Hobby Lobby, it’s unlikely the justices would strike down the contraceptive mandate altogether, according to Timothy Jost, a law professor and health care reform expert at Washington & Lee University. Such a decision would instead allow religious for-profit corporation owners to opt out without paying the government fines.

The other senators who signed the brief are: Max Baucus (D-Mont.), Barbara Boxer (D-Calif.), Sherrod Brown (D-Ohio), Maria Cantwell (D-Wash.), Benjamin Cardin (D-Md.), Richard Durbin (D-Ill.), Dianne Feinstein (D-Calif.), Tom Harkin (D-Iowa), Tim Johnson (D-SD), Patrick Leahy (D-Vt.), Carl Levin (D-Mich.), Ed Markey (D-Mass.), Robert Menendez (D-NJ), Barbara Mikulsi (D-Md.), Harry Reid (D-Nev.), Bernie Sanders (D-Vt.), Chuck Schumer (D-NY) and Ron Wyden (D-Ore.).

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