When the Supreme Court unwisely ruled that some companies can decline on religious grounds to cover contraceptives in their employee health plans, it was interpreting not the 1st Amendment but a federal statute, the Religious Freedom Restoration Act.
That means Congress has the authority to revisit and change the 1993 law. It can and should do so, not just to overrule the court’s decision as it affects healthcare for women but also to address other possible consequences of the majority’s expansive holding that for-profit corporations are “persons” that can raise religious objections to complying with a host of laws. But haste in responding to the decision makes waste, as is evident in the incomplete proposal unveiled last week by Sens. Patty Murray (D-Wash.) and Mark Udall (D-Colo.)
That bill would prevent for-profit corporations from using the religious freedom law to deprive members of a company health plan of any coverage required by federal law. It also would preserve the “accommodation” offered by the Obama administration to religious schools and hospitals with objections to birth control. Under that compromise, if an employer signs a form expressing religious objections to providing the coverage, its insurance carrier steps in to do so at no added cost.
But the Murray-Udall bill is too narrowly focused on contraception and healthcare.
The court’s ruling that “closely held” companies such as Hobby Lobby are protected by the religious freedom law has potential impacts beyond health coverage. In her dissent, Justice Ruth Bader Ginsburg worried that employers might also be able to cite religious reasons for discriminating in hiring. A thorough review of the law would address this question as well as the larger issue of whether for-profit corporations can assert religious beliefs in any context.
As for contraception, the full effects of the decision are still unclear. Justice Samuel A. Alito Jr. held out the possibility that female employees of companies such as Hobby Lobby might receive disputed forms of birth control under a variation on the compromise the Obama administration offered to religious schools and hospitals. But a few days after the ruling, the court temporarily allowed Wheaton College, an evangelical institution, to refuse to sign the form and, instead, communicate its objections in a letter to the federal government. If the court permanently decided to excuse Wheaton and other institutions from using the form, it might (as Justice Sonia Sotomayor warned) create an administrative problem. But that also won’t be clear for some time.
The senators are right to want to undo the damage created by the court’s radical reinterpretation of the Religious Freedom Restoration Act. But Congress needs to move with greater care and deliberation than the court demonstrated.
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