A bill to undo Hobby Lobby

With fewer than a dozen crucialwords, a group of U.S. senators and representatives this week proposed what they have called a “legislative fix” to undo the Supreme Court’s June 30 decision in Burwell v. Hobby Lobby. Here is the key language in the Senate version, bill number S. 2578: “Application: Subsection (a) shall apply notwithstanding any other provision of federal law, including PublicLaw 103-141.”

The bill would modify — but without directly amending — the federal law that was the basis of theSupreme Court’s ruling — that is, the Religious Freedom Restoration Act (officially enacted as Public Law 103-141). The new measure would have the effect of simply overrulingthe Hobby Lobby decision. Identical versions were introduced in the Senate and House on Wednesday.

The Supreme Court’s decision gave a judicial interpretation of the scope of a federal law; it was not based on the Constitution. Thus, Congress is within its constitutional power to change that interpretation. While the bill may well have a political impact, especially in an attempt totake advantage of theresentment among women’s groups regarding the Hobby Lobby decision, it does not appear to have much chance of actually being passed by Congress. House Republican leaders have praised the Hobby Lobby decision as reinforcement of religious freedom.

The nine-page bill (see the Senate version’s full text here here) is named the “Protect Women’s Health From Corporate Interference Act of 2014.” Most of the bill’s text is made up of “findings” by Congress, seeking to justify the need toassure that the Affordable Care Act’s birth control mandate will be enforced even against privately owned corporations that are owned by a small group of individuals whoobject to the mandate for religious reasons. The Court interpreted the Religious Freedom Restoration Act to give those owners of “closely held” companies a religiousexemption from the ACA mandate.

Among the bill’s “findings,” threestand out.

The first cited the Supreme Court ruling, and said it allows companies that otherwise would provide “preventive health services” an option to deny such coverage “and to treat a critical women’s health service differently than other comparable services.” Legislation, it added, “is needed to clarify that employers may not discriminate against their employees and dependents.”

The second said that”it is imperative that Congress act to reinstate contraception coverage and to protect employees and the covered dependents of such employees from other attempts to to take away coverage for their health benefits to which such employees and dependents are entitled under federal law.”

The thirdsaid that the measure “is intended to be consistent with the Congressional intent in enacting the Religious Freedom Restoration Act of1993 (Public Law 103-141), and with the exemption for houses of worship, and an accommodation for religiously-affiliated non-profit organizations with objections to contraceptive coverage.”

That finding does not explicitly change the text of the 1993 law, and thus seeks to avoid a complaint that Congress was now seeking to narrow the religious freedom rightssecured by thatlaw, but rather seeksonlyto reinforce what isclaimed to have been Congress’s actual intent. The exemptions noted in that section are the ones that the Obama administration has written into the health care law’s regulations.

There are two parts of the measure that are designed directly to tell the government, courts and employers how the new coverage is to be enforced. First, Section 4(a) interprets existing federal health care law and employee benefit lawto assure that the ACA mandate will be carried out against employers who have group health plans. That would include, although this goes unmentioned directly, the very closely held corporations that got a religious exemption as a result of the Hobby Lobby ruling.

Second, Section 4(b) — the wording noted at the beginning of this post — tells courts how to apply the new law, saying that it would apply “notwithstanding any other provision of federal law, including Public Law 103-141.”

The bill already has attracted forty co-sponsors in the Senate. But that would not be enough to overcome a filibuster, should opponents of such a measure mount one there.