Sen. Mark Udall, D-Colo., has a great set of eyebrows he deploys effectively to punctuate his point. They can add levity. They can scold. They can empathize. They can connote the seriousness of a topic. While his bid for re-election has been relatively devoid of levity – particularly since Rep. Cory Gardner, R-Yuma, entered the race – Udall’s eyebrows have been instrumental in underscoring his concern about any given issue, and they have been working double-time since the U.S. Supreme Court handed down its alarming 5-4 decision in Burwell vs. Hobby Lobby, Inc.
That decision was based first on the premise the Religious Freedom Restoration Act, passed by Congress in 1993, extends to closely held corporations and does not simply protect individuals’ rights to free exercise of religion from any law that might hamper that freedom. That law’s premise is lovely, I suppose, but somewhat superfluous given the clear language in the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The intent behind the RFRA was to ensure that even if Congress is not trying to hamper anyone’s religious freedom, it is not allowed to accidentally pass a law that does so. It still seems redundant, but whatever.
What the Hobby Lobby decision did is extend the RFRA to apply to closely held corporations – whatever that means – and then remind us all that, under the RFRA, cherished First Amendment protections are at stake. Only this time, it is not your and my First Amendment protections the court is concerned with – it is those of Hobby Lobby and other corporations owned by a “close” group, whose religious beliefs are so strong as to be compromised by providing their female employees basic forms of birth control for free on their group insurance policies. The court’s opinion, written by Justice Antonin Scalia, takes a three-step approach that begins by equating corporations with individuals intended to be protected under the Religious Freedom Restoration Act: “RFRA applies to regulations that govern the activities of closely held for-profit corporations.” In making that leap, it is an easy hop to reaffirm the First Amendment rights the RFRA intends to protect: “(the Affordable Care Act’)s contraceptive mandate substantially burdens the exercise of religion,” Scalia wrote. He seals the deal by saying there are other, less constitutionally onerous ways of delivering the contraceptives in question: “the Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest.”
So there you have it: statute, Constitution and a condescending order to the Department of Health and Human Services to find a better way to get the job done. However shaky and depressing, it is the law of the land, barring a rewrite or amendment to the Religious Freedom Restoration Act to clarify the scope of its wards. Enter Udall, whose lead over Gardner – if he has one – is well within the margin of Democratic, Republican and nonpartisan polls alike. While he could get down to the business of correcting the RFRA, he instead has introduced a measure that is bound for nowhere other than a few headlines, stump speeches and gotcha votes – not that I am unsympathetic.
Udall and Sen. Patty Murray, D-Wash., introduced the Protect Women’s Health from Corporate Interference Act (Now there’s a title full of nuance) that would override the Supreme Court’s decision and require all for-profit companies to provide insurance policies that cover, free of charge, the 20 forms of contraception laid out by the Department of Health and Human Services in implementing the Affordable Care Act. How an act of Congress can expressly override a Supreme Court decision notwithstanding, the bill is decidedly dead in the water – at least in the House of Representatives, where Rep. Diana DeGette, D-Denver, is drafting a companion measure to Udall’s bill. That will not stop it from becoming a prominent campaign tool for Udall, complete with concerned-eyebrow photo ops.
As heartening as this bill’s enactment would be, it is procedurally mystifying – at least according to the boundaries determined by the Constitution’s separation of powers. From a political playbook perspective, it makes perfect sense. It makes those of us who are enraged and dismayed by the Hobby Lobby decision feel as though our elected officials can and will do something to correct the injustice. But Udall’s bill cannot and will not.
If there was any hope of such a correction, it would necessarily come in the form of modifying the Religious Freedom Restoration Act, so the Supreme Court was not left to determine the law’s scope. Udall, Murray and everyone else in the United States are painfully aware that such a measured and warranted legislative change is not in the cards in this election season, nor was it a possibility prior. Instead, we are left with the theatrics of a boldly named, well-intended but doomed-before-the-ink-is-dry proposal. That is cold comfort.
Megan Graham is a Herald editorial writer and policy analyst. Reach her at firstname.lastname@example.org.