Under the guise of “protect[ing] women’s health from corporate interference,” the bill that Senate Democrats are proposing in response to the Hobby Lobby ruling would deprive religious entities of all religious-liberty protections against having the HHS mandate directly imposed on them. Specifically:
1. The bill would apply to employers generally, not just (as the bill’s short title would suggest) to “corporate” employers. Subsection 4(a) would make it unlawful for any “employer that establishes or maintains a group health plan for its employees” to “deny coverage of a specific health care item or service . . . where the coverage of such item or service is required under any provision of Federal law or the regulations promulgated thereunder.” (Note that the “purpose” set forth in section 2 is likewise defined with respect to “employers” generally.)
As I understand it, subsection 4(a) wouldn’t itself override the existing “exemption” from the HHS contraceptive mandate (which applies to a very narrow category of “religious employers”) or the “accommodation” for religious nonprofits, because employers covered by the exemption and accommodation are not “deny[ing] coverage” of an “item or service [that] is required under any provision of Federal law or the regulations promulgated thereunder.”
2. Subsection 4(b) states that subsection 4(a) “shall apply notwithstanding any other provision of Federal law, including Public Law 103-441” (which is the Religious Freedom Restoration Act).
In other words, no employer – religious or otherwise, corporate or otherwise, for-profit or otherwise — would have any RFRA rights against being required to comply with subsection 4(a).
3. Subsection 4(c) states that the existing HHS mandate regulations on the exemption and the accommodation “shall apply with respect to” section 4. It further states that the regulatory agencies “may modify such regulations consistent with the purpose and findings of this Act.”
I don’t know what it means to say that the exemption and the accommodation “shall apply with respect to” section 4. I gather that it means no more than that the bill itself wouldn’t abolish the exemption and the accommodation.
In any event, it is clear from the second sentence of subsection 4(c) that the bill would allow the Obama administration (or its successors) to abolish the exemption and the accommodation in their entirety. (If the bill were instead intended to preserve the exemption and the accommodation against regulatory abolition, it would be a fairly simple matter to say so clearly.)
Under the bill, if the exemption and the accommodation were abolished, religious entities would be subject to the HHS mandate under subsection 4(a) and would have no RFRA protections against it.
I’ll note that (as a reader called to my attention) the metadata to the one-pager that Senator Murray issued about the bill yesterday identified its author as Hillary Schneller of the National Women’s Law Center. (I haven’t checked whether the metadata has since been scrubbed.) It’s a safe bet that activists at NWLC and similar organizations drafted the entire bill. 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.
(Among other things, that one-pager asserts that the bill “would restore the contraceptive coverage requirement guaranteed by the Affordable Care Act.” But the so-called Affordable Care Act — which in its full Orwellian glory is actually the Patient Protection and Affordable Care Act — does not mention contraceptive coverage at all, much less guarantee it. The HHS mandate is a regulatory implementation of a provision of the Act.)