OVERTURNING HOBBY LOBBY: AN ANALYSIS OF S. 2578
The Senate on July 16 failed to end a filibuster in its effort to fast-track passage of Senator Patty Murray et al.’s bill to overturn the Supreme Court’s June 30 Hobby Lobby ruling. By a vote of 56-43 (four short of the number required to invoke cloture), the bill failed. Every Democrat (except Hawaii’s Schatz, a sponsor listed as “not voting,” and Harry Reid, who had to change positions under parliamentary rules to allow him to revive the bill at any time in the future he chooses) voted to shove the bill through; every Republican but three (Maine’s Collins, Illinois’ Kirk, and Alaska’s Murkowski) voted to stop it. Expect the two defecting female Republicans (Collins, Murkowski) to figure prominently in Democrat thumping of their “war on women” trope.
Senator Patty Murray et al.’s “Protect Women’s Health from Corporate Interference Act of 2014” would overturn the U.S. Supreme Court’s June 30 Hobby Lobby ruling by prohibiting any corporation required by Obamacare to provide health insurance from refusing to provide a legislatively or administratively prescribed “specific health care item or service,” the Religious Freedom Restoration Act (RFRA) notwithstanding. Since Hobby Lobby was decided under RFRA and not explicitly on First Amendment grounds, what Congress giveth (or at least did not explicitly prohibit) Congress can taketh away.
The actual implementation provisions are, like Obamacare, obfuscated in legalese to blur what is being mandated. What is more interesting are the bill’s sections 2 (Purpose) and 3 (Findings).
Section 2 claims the purpose of the bill is to “ensure that employers that provide health benefits to their employees cannot deny any specific health benefits, including contraception coverage” to employees or covered dependents if federal law (and, presumably, administrative ukases issued under its authority) require it. The debate in Hobby Lobby,of course, was not about contraception but abortifacients. Like the “health” exception to abortion regulations, however, which is generally so broad as to eviscerate the regulations themselves, the abortifacients in question are likely to be classified as “contraceptives” because the federal government will likely adhere to the American College of Obstetricians and Gynecologists’ (ACOG) arbitrary and unscientific redefinition of “pregnancy” as beginning at implantation, not fertilization.
Section 3 reads like a press release from Planned Parenthood. It contains 19 Congressional “findings” that Hobby Lobby endangers women’s health, could cost the government money, and imperils the balance of rights. With no evidence, Congress “finds” that “access to the full range of health benefits and preventive services, as guaranteed by federal law or through federal regulations, provides all Americans with the opportunity to lead healthier and more productive lives.” The obvious rejoinders are two. Abortifacients are a “health benefit” neither to the unborn child (whom they kill) nor his mother (since pregnancy is not a disease). And even if they were a “health benefit,” the bill does not say why it is a private third party’s obligation, grave moral reservations notwithstanding, to pay for them. The mere coercive power of law does not negate that question.
The “findings” also regularly equivocate between “birth control” and “contraceptives,” as if the terms were synonymous. They are not. “Birth control” includes contraceptives and abortifacients; contraceptives, by definition (except ACOG definition), do not. Such sloppy usage has no place among “findings” intended to guide public policy.
“Birth control” (including, presumably, abortifacients) is the best thing since sliced bread (not yet mandated as a benefit from your employer). Thanks to “birth control,” women “have higher educational and career achievement” as well as “economic success and ability to participate in society equally.” In a bow to “economic injustice” tropes, we are assured (again with no evidence) that “cost-sharing” (i.e., somebody else paying for it) birth control—including abortifacient IUDs—is essential to ensuring that women have choices about what they judge the most effective birth control for them. (Obviously, if somebody else pays for something, it increases my “choices,” but why does this principle only apply in the area of abortion and, more generally, sex?) Lest one think that this entire scheme is about eugenics, “optimal” social policy and getting somebody else to pay for it, i.e., having nothing to do with “health,” the authors throw in the standard trope that “14 percent” of birth-control pill users employ the method for “noncontraceptive health benefits.”
The bill flatly avoids acknowledging the moral objection to complicity in providing abortifacients. It admits that “[d]ozens of cases have been filed in Federal court that want to take [abortifacient] benefit[s] away from their employees” but never says why. Inserted three clauses after talking about what coverage costs, how the public supports it, and how it costs the federal government nothing (an amazing claim, given that the bill admits 29 lines before that coverage was worth nearly half a billion dollars), one is left to think that Hobby Lobby objected to covering abortifacients to save money. Indeed, the only place religious freedom is even marginally acknowledged (the life issues are not acknowledged at all) is when the findings quote Justice Ginsburg’s scare tactics in her Hobby Lobby dissent: today, no abortifacients; tomorrow, no blood transfusions. The bill simply pretends there is no life and no religious issue involved.
Indeed, as Ed Whalen has noted, one of the most radical aspects of the bill’s section 4(c) and its making RFRA inapplicable to employer-provided health care insurance, is that, in theory, an administration could even rescind the current “exemptions” granted, e.g., to churches to not provide abortifacients and, under the Murray bill, they could theoretically be forced to do so. Religious freedom would be purely at administrative sufferance.
43 Senators—all Democrats and one Socialist, no Republicans—sponsor this bill. Of the 42 Democrats, 15 hold seats up for election in 2014 (although 3 of the 13—Harkin, Levin, and Johnson of South Dakota—are retiring). Of those Democrats considered most vulnerable in 2014, only North Carolina’s Kay Hagan and Montana’s John Walsh sponsored the bill. Arkansas’ Mark Pryor and Louisiana’s Mary Landrieu are not sponsors. Both apparently think discretion is the better part of electoral success: A search of “Hobby Lobby” on their websites indicates, unlike many of their Democrat colleagues, no statements on the decision. Nine other Democrats and one independent Democrat have not sponsored the bill. Their non-sponsorship, however, is practically meaningless: When the Senate voted July 16 to try to fast-track the bill by shutting down a Republican filibuster, every non-sponsor (including West Virginia’s Manchin) voted to push the bill through. It is clear, therefore, that when push comes to shove, the Democrat litmus test of absolute fealty to unregulated abortion will never be compromised. “Pro-life Democrat” should largely be deemed an oxymoron: The life of no unborn child will ever trump a Democrat politician’s life in the party.
Of the twelve non-sponsors of Murray’s bill, nine were in the Senate in March 2012 when the Blunt Amendment, designed to protect religious freedom objections to Obamacare, was defeated. Of those nine, seven voted against the Blunt Amendment. In March 2013, when Nebraska Senator Deb Fischer offered an amendment insisting that Obamacare programs be consistent with the Hyde Amendment and not infringe on religious liberty, it also failed (44-55), with ten of the twelve non-sponsors voting against it. Of those twelve non-sponsors, one (Carper) has made a statement against the Hobby Lobby decision. We should surmise, therefore, his support for support of the Murray bill. Of the ten keeping silence, six have largely pro-abortion records but several represent pro-life states (Arkansas, Louisiana, West Virginia) which could flip to the GOP in November 2014.
The solid Democrat phalanx behind the Murray bill (coupled with “absent” votes from endangered senators like Landrieu and Pryor and the silence of West Virginia) indicate that the Democrat “war on women” trope is likely to be played hard this fall in a bid to scare voters against a majority-Republican Senate. The bill itself is more showcase than substance, as it is certainly dead-on-arrival in the House of Representatives. When Majority Leader Reid fast tracked the bill to a floor vote, the partisan purpose was obvious. Likewise obvious was the partisan purpose of the Judiciary Committee’s July 15 hearings on S.1696, legislation that attempts to prevent states from adopting any legislative protective of the unborn.
The makeup of the Senate sponsorship indicates just how much Democrats continue taking Catholic support for granted—apparently with immunity. Despite the religious liberty implications of Hobby Lobby for Catholics and the prominent role the Catholic Church in the United States took in defense of religious freedom from being forced to buy other peoples’ abortifacients, Senators from Catholic states are prominent sponsors of the bill. In the 12 states where Catholics occupy the proportionally largest shares of the local population, 14 of their 24 senators are sponsors; in the 12 with the numerically largest populations of Catholics, 15 of their 24 senators are sponsors. Indeed, 11 of the 42 sponsors themselves are self-declared Catholics, including its primary sponsor, Patty Murray. That one-quarter of the Senators actively opposing the primary pro-life and religious freedom issue that the Catholic Church in the United States has emphasized for more than two years indicates the grave challenge the American Catholic bishops face internally.
 S. 2578. A similar bill (HR 5051) was introduced by 130 representatives in the House.
 See Rachel Benson Gold, “The Implications of Defining When a Woman Is Pregnant,” Guttmacher Report on Public Policy, May 2005, available at: http://www.guttmacher.org/pubs/tgr/08/2/gr080207.html (accessed July 12, 2014, 06:30UTC). Already almost a decade ago, Guttmacher was sounding the alarm that States which were adopting protective legislation to save the unborn were undermining this ACOG word game (as the article notes, “language matters”). A box in the article clearly indicates the implications of this word game for fetal-pain legislation pending in Congress (e.g., HR 1797, approved by the House but languishing in the Senate). Expect that if Murray’s bill becomes law, the Department of Health and Human Services will define abortifacients as “contraceptives” and the White House—as in the case of embryo experimentation—begin issuing statements about “science” trumping “ideology” and “belief” in an Obama Administration.
 Ed Whalen of the Ethics and Public Policy Center writes that the bill was likely drafted by the National Women’s Law Center, commenting: “I’m not going to pretend to be shocked that outsiders draft legislation for senators. But if you hand the drafting pen to ideological activists, you’re not likely to get a modest result.” Ed Whalen, “Senate Democrats’ Religious-Freedom Deprivation Bill,” National Review Online, available at: http://www.nationalreview.com/corner/382424/senate-democrats-religious-freedom-deprivation-bill-ed-whelan (accessed July 12, 2014, 20:00 UTC).
 A similar deflecting argument occurs in the case of abortion, where at least 95% are procured for reasons of convenience: The argument that legal abortion is necessary for a limited scope of hard cases is trotted about to shield the vast majority of situations which have absolutely nothing to do with hard cases.
 After stating that RFRA does not apply to employer-provided health insurance issues, S. 2578 then declares in a bald-faced lie that Congress is restoring its own true intent when it originally enacted RFRA in 1993. Senator Murray made the same claim in her Hobby Lobby amicus brief (see http://www.murray.senate.gov/public/index.cfm/2014/1/hobby-lobby-murray-leads-senate-democrats-amicus-brief-in-scotus-case), signed by 17 of the current sponsors of her bill. (Rhode Island’s Reid, who is not a sponsor, signed the brief). This revisionist approach to RFRA has also been advanced by Linda Greenhouse: see “Reading Hobby Lobby in Context,” The New York Times, July 9, 2014, at http://www.nytimes.com/2014/07/10/opinion/linda-greenhouse-reading-hobby-lobby-in-context.html?_r=0 (accessed July 12, 2014, 21:00 UTC).
 Whalen, “Senate Democrats’ Religious-Freedom Deprivation Bill,” cited above.
 Senators Baldwin, Begich, Bennet, Blumenthal, Booker, Boxer, Brown, Cantwell, Cardin, Coons, Durbin, Feinstein, Franken, Gillibrand, Hagan, Harkin, Heinrich, Hirono, Johnson (SD), Kaine, Klobuchar, Leahy, Levin, Markey, Menendez, Merkley, Mikulski, Murphy, Murray (primary sponsor), Reid, Sanders, Schatz, Schumer, Shaheen, Stabenow, Tester, Udall (CO), Udall (NM), Walsh, Warner, Warren, Whitehouse, and Wyden. Independent Sanders, who caucuses with Democrats, is also a sponsor. The text of the bill was put directly on the Senate calendar July 10, 2014.
 Senators Booker, Durbin, Franken, Hagan, Harkin*, Johnson (SD)*, Levin*, Markey, Merkley, Shaheen, Udall (CO), Udall (NM), and Walsh. Asterisks indicate retirees.
 In addition to Senators Landrieu and Pryor, Senators Carper, Casey, Donnelly, Heitkamp, King (I-ME), McCaskill, Manchin, Nelson (FL), Reed (RI), and Rockefeller are not listed as sponsors.
 Opposing the Blunt amendment were Senators Carper, Landrieu, McCaskill, Nelson (FL), Pryor, Reed (RI), and Rockefeller. Supporting it were Senators Casey and Manchin. Senators Donnelly and Heitkamp were not in the Senate at the time. Neither was Maine’s Independent (who caucuses with Democrats), Angus King.
 The only non-sponsors of Murray’s bill to vote for the Fischer amendment were Arkansas’s Pryor and West Virginia’s Manchin. Maine Independent King also opposed the Fischer amendment.
 Carper: “The Supreme Court got it wrong, plain and simple.” (http://www.carper.senate.gov/public/index.cfm/pressreleases?ID=7c8089fb-a44a-44bd-a832-0ad497739133, accessed July 12, 2014, 18:00 UTC). On the other hand, Casey issued a more nuanced statement: “I am carefully reviewing today’s Supreme Court decision and considering its implications” (http://www.casey.senate.gov/newsroom/releases/casey-statement-on-supreme-court-hobby-lobby-decision). As of July 12, no statements were available on the websites of Senators Donnelly, Heitkamp, King, Landrieu, McCaskill, Manchin, Nelson (FL), Pryor, Reed or Rockefeller.
 A fast track Senate vote to pass the Murray bill would likely prevail: In addition to the 43 official sponsors, the author predicts support from Senators Carper, King, McCaskill, Nelson, Reed and Rockefeller, i.e., 49 votes. (Although he has not made a statement, Rhode Island’s Reed opposed both the Blunt and Fischer amendments). With West Virginia’s Manchin likely to vote pro-life, pressure would likely be on Pennsylvania’s Bob Casey and North Dakota’s Heidi Heitkamp to provide a fiftieth vote (allowing pro-abortion Joe Biden to break the tie) or a majority. While Senator Casey has spoken about the religious liberty implications of Hobby Lobby and Senator Heitkamp has kept silence, Casey voted for the Blunt amendment (but against Fischer) and Heitkamp against Fischer. With both having four years left to their terms the political pressure to get either or both of their votes, pro-life sentiments in Pennsylvania and North Dakota notwithstanding, is likely to be stronger than putting the pressure on vulnerable Democrats like Louisiana’s Landrieu or Arkansas’s Pryor, facing voters this year. An obvious benefit would be to pick up a Republican vote or two: Maine’s Susan Collins supported Blunt but opposed Fischer and kept silent on Hobby Lobby: A Republican woman would be valuable propaganda in the “war on women” trope. (Never mind pro-life Republican women like Senators Ayotte or Fischer). Illinois Republican Mark Kirk did not vote on the Blunt amendment but opposed the Fischer amendment and as of July 12 has said nothing about Hobby Lobby. On the cloture vote July 16 three Republicans—Collins, Kirk, and Alaska’s Lisa Murkowski—voted with Democrats to push this bill through.
 Both Mormon Democrats likewise ignore the opposition of the Church of Latter-Day Saints to abortion: Nevada’s Reid and New Mexico’s Udall are both sponsors of the Murray bill.
 Of the 12 states with the highest percentage of Catholics in their population, sponsors include: Senators Baldwin (WI), Blumenthal (CT), Booker (NJ*), Boxer (CA), Durbin (IL*), Feinstein (CA), Gillibrand (NY), Markey (MA*), Menendez (NJ), Murphy (CT), Reid (NV), Schumer (NY), Warren (MA), and Whitehouse (RI). Of the 12 states with the numerically largest Catholic populations (not as a function of percentage), 15 senators are sponsors: Baldwin (WI), Blumenthal (CT), Booker (NJ*), Boxer (CA), Brown (OH), Durbin (IL), Feinstein (CA), Gillibrand (NY), Levin (MI*↓), Markey (MA*), Menendez (NJ), Murphy (CT), Schumer (NY), Stabenow (MI), and Warren (MA). * indicates seat is up for election in 2014. ↓ indicates retiring incumbent.
 Senators Begich, Cantwell, Durbin, Gillibrand, Harkin, Kaine, Leahy, Markey, Menendez, Mikulski, and Murray.
* * * * *
—John M. Grondelski (Ph.D., Fordham) is former associate dean of the School of Theology, Seton Hall University, South Orange, New Jersey.
Subsequent to writing this analysis, Sen. Machin of West Virginia explained why he voted for the bill to overturn Hobby Lobby: according to him, “for profit” corporations should not have conscience protections akin to more closely religious institutions like soup kitchens: http://www.manchin.senate.gov/public/index.cfm/press-releases?ID=136b951e-5a44-4800-a76b-414c6b65d40b
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