When Hobby Lobby, the huge crafts retailer ($3.1 billion in annual sales with 23,000 full- and part-time employees and over 600 stores nationwide), deployed the federal Religious Freedom Restoration Act (RFRA) to deny female employees coverage for four contraceptive medicines, women’s groups finally took notice that extreme religious liberty statutes are not their friends. They, along with reproductive rights groups, mobilized to fight the lawsuit, filing numerous amicus briefs at the Supreme Court on the side of the government and arguing that the government’s interest in protecting women from discrimination based on gender and religion should be sufficient to trump RFRA and lead to Hobby Lobby’s loss.
Of course, that is not what happened as a narrowly divided Supreme Court in Burwell v. Hobby Lobby held that RFRA handed Hobby Lobby and apparently most for-profit, nonreligious corporations free exercise rights and that Hobby Lobby’s rights under RFRA overcame the government’s compelling interest in the protection of women and reproductive health. This is not the place to get into the minutiae of the decision, which I discussed here, because the time has come to move on. Washington State Democrats have, landing on a smart proposal to protect women from discrimination that can nullify the effect of the pernicious Hobby Lobby decision.
They have made Hobby Lobby and women’s rights election issues, which they should be in every state.
The Political Path to the Protection of Women’s Health Following Hobby Lobby
During this election season, Washington State Democratic Senators Karen Keiser, Jeanne Kohl-Welles, David Frockt, Kevin Ranker, and Jamie Pedersen are promising to introduce legislation in 2015 that would ban discrimination against women in the provision of health care involving contraception. In a word: brilliant.
Now you may ask: how can a state overturn a United States Supreme Court decision on religious liberty?
First, RFRA is just a misguided federal statute, not the Constitution. Under the Constitution, or more specifically, the First Amendment, Hobby Lobby would have lost, because the Supreme Court’s common sense religious liberty doctrine, affirmed in Employment Div. v. Smith and Church of Lukumi Babalu Aye v. City of Hialeah, upholds laws that are neutral and generally applicable, which the contraception mandate plainly is. The Court even said as much in the Hobby Lobby decision.
Second, the federal RFRA is unconstitutional when applied to state law under Boerne v. Flores. That is correct: while RFRA’s proponents and original sponsors like Senator Orrin Hatch persist in talking about RFRA as though it establishes constitutional rights, nothing could be further from the truth. It’s just a statute and one that cannot be applied to state or local law.
This is a brilliant move on the part of the Washington Democratic senators, because it cuts through the rhetoric of the Hobby Lobby supporters. Moreover, nearly every American woman uses contraception at some point, and the ones that Hobby Lobby opposes are vital for victims of rape. (Contrary to Hobby Lobby’s beliefs, they are not abortifacients.) Essentially, these politicians are appealing to all women voters, and they have already gained political traction if the contentious tone of the comments following the article above is any indication.
The Washington Democrats’ Hobby Lobby work around has forced state Republicans to make a public choice on women’s rights. Republican Senator Andy Hill chose women, saying the proposal is “reasonable.” Senator Steve O’Ban, however, took the more dangerous path, asserting that the voters in his district don’t care. At least one of his constituents disagreed, saying, “This issue is very IMPORTANT to me, and to the vast majority of women I have met while out doorbelling and talking with on behalf of our Democrat candidates.”
Every State Can Overturn the Effect of Hobby Lobby, Though Some More Easily Than Others
States have several paths to overturning the effect of Hobby Lobby. One option is to amend the state anti-discrimination laws, as the Washington Democrats appear to be contemplating, to clarify that an employer who does not cover reproductive medical services by gender is guilty of discrimination. Thus, the women who work for the dozen Hobby Lobby stores in Washington would not feel the brunt of the Hobby Lobby decision, because state law would protect their right not to be discriminated against in a health care plan.
Second, a state could require that all employers in the state are required, separate from the federal Affordable Care Act, to cover women’s reproductive health care, leaving the choice of contraception or other reproductive health options to each individual woman in consultation with her doctor. Either of these two solutions are all that would be needed in states without a state RFRA.
Third, there is a wrinkle in this solution in the twenty states have been taken down the primrose path to enact their own state RFRAs, as depicted in this map. Employers in those twenty states could invoke the state RFRA to avoid obligations to women’s reproductive health care, just as Hobby Lobby invoked the federal RFRA for that purpose. The state courts are not required to interpret their state RFRAs in the extreme manner of the majority of the Court in Hobby Lobby, but they could.
If there is a state RFRA, the pathway to overturn the effect of Hobby Lobby would be to (1) include in the new amendments to the anti-discrimination or health coverage law that the state RFRA does not apply to that law (which is perfectly constitutional, because every application of RFRA is gratuitous, not constitutionally mandated); or (2) repeal the state RFRA outright now that has been shown to be what it is: in a word, extreme.
The Big Picture on the Future of Extreme Religious Liberty Statutes
This political development in Washington suggests a template for women’s rights and reproductive rights groups to pursue in every state. It also reveals a new potential coalition with the LGBT community, which is already fighting state RFRAs whether they are in place, pending, or proposed in the future, because they are as dangerous to women’s rights as to LGBT rights (not to mention child protection).
Civil rights groups were blind (or deceived) in 1993 when the first RFRA was enacted, and they blinked in 2000 when it was re-enacted following Boerne. During the latter debate, it was widely assumed by the civil rights community that Title VII would be a bulwark against federal RFRA claims to discriminate. Hobby Lobby proved that they were wrong. Now women’s civil rights rest in the hands of the states.
The Hobby Lobby ruling could have been avoided in various ways, including the gender discrimination approach. Among other things, it is too bad an amicus for women employees couldn’t get ten minutes or something of oral argument time. Their interests were not fully protected by the Administration in part because the Administration had to balance various things.
Ms. Hamilton may be right in her assessment that States can pass such laws, though in the big picture her argument will have very little, if any, substantial affect! You see, most every employer of any size is self-insured. These self-insured health plans are governed by a law known as the Employee Retirement Income Security Act (ERISA). Article Six of the US Constitution has another law known as the Supremacy Clause, which is really pretty simple, but in a few words it means that ERISA (a Federal law) will trump any of these State laws that Ms. Hamilton is touting. In sum, States can pass these antidiscrimination laws until the cows come home, but self-insured employers who refuse to offer contraceptives on religious grounds still won’t be forced to offer them. And one last thing, the FDA guidelines specifically say that emergency contraceptives CAN prevent a fertilized egg from implanting in the uterus, thus destroying the fertilized egg. Don’t believe me? See for yourself: http://www.fda.gov/ForConsumers/ByAudience/ForWomen/FreePublications/ucm313215.htm
Ms. Hamilton misses a key point. The Lukumi case raised the notion of a “religious gerrymander” and the proposed Washington state law would qualify as such because the very motivation of the law would be to “target” Employers exempt from the contraception mandate for religious reasons. Since We see in Windsor how the motivation for a law can be legally significant, this motivation would not and should not be ignored by the courts. Consequently, any state attempting to do so would find its metaphorical backside handed to it. If the goal is to expand contraception availability, this is a bad way to do it.