The Supreme Court today announced that it will hear several cases involving the accommodation for religious nonprofits seeking to opt out of the Affordable Care Act’s contraception coverage requirement. This is not a surprise; as People For the American Way Foundation wrote in its Supreme Court 2015-2016 Term Preview:
Under the accommodation, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. This way, the employees can get the coverage without their employers having to contract, arrange, or pay for it. But some religious nonprofits assert that even the accommodation violates their religious liberty under the Religious Freedom Restoration Act (RFRA). Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.
The list of circuit courts that have roundly rejected this argument is long: The DC Circuit, the Second Circuit, Third Circuit, the Fifth Circuit, the Sixth Circuit, the Seventh Circuit, and the Tenth Circuit. But in September 2015, the Eighth Circuit ruled in favor of the nonprofits and found the accommodation violated RFRA. Now that there is a circuit split, it seems likely that the Supreme Court will take up the issue via the appeals from one or more of these circuit decisions.
The premise of those challenging the accommodation is a severe distortion of RFRA and of the very concept of religious liberty set forth by the Court’s hard-right conservatives in the 5-4 ruling in Hobby Lobby. That law was passed with overwhelming bipartisan support in 1993 as a means to protect the free exercise of religion. But conservative ideologues have sought to transform RFRA from a shield into a sword, one that they can use to violate the rights of third parties. The right wing’s enthusiastic embrace of Kentucky county clerk Kim Davis shows just how far they want to extend the reasoning of Hobby Lobby.
Here, the conservatives argue that filling out a form so that insurance companies can know about their legal obligations to provide certain coverage is a substantial burden on the exercise of their religion. That strained reasoning is a cynical use of religion to deprive women of needed healthcare, an effort to force women employees to live by their employers’ religious strictures rather than their own. But what the Supreme Court said about the First Amendment in a 1985 case called Estate of Thornton v. Caldor is equally true of RFRA:
The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities. [quoting from a lower court opinion by Judge Learned Hand]
Justice Kennedy, who voted with the Hobby Lobby majority, is likely to be the deciding vote in this case. His concurrence in Hobby Lobby hinted that he might not go as far as his fellow conservatives in granting people the latitude to use RFRA to deprive others of their rights:
Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases [involving for-profit employers] the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here [the accommodation for religious non-profits].
Given the circuit split on the accommodation for religious nonprofits, the Supreme Court had little choice but to take this issue on. They do have a choice, however, in how they rule. Hopefully, a majority of justices will take the first step in restoring RFRA to the law it was intended to be.
WASHINGTON – Today People For the American Way released a report on the anti-choice activists driving the attacks on Planned Parenthood, including in-depth background information on the history of Operation Rescue and its links with the Center for Medical Progress (CMP).
The report, “Operation Rescue’s Big Break: How an Organization Rooted in the Radical Fringes of the Anti-Choice Movement Is Threatening to Shut Down the Government,” situates the CMP video “sting” within the history of the anti-choice fringe.
“While David Daleiden is relatively young and unknown, his Center for Medical Progress is rooted in a long tradition of activists who have used sham ‘investigations’ to smear abortion providers and undermine access to legal care,” said Miranda Blue, senior researcher at People For the American Way and principal author of the report. “It is no coincidence that when he started his project, Daleiden turned to Operation Rescue and Life Dynamics, two organizations that have spent decades waging campaigns of intimidation and fear against abortion providers. The Center for Medical Progress’ smear on Planned Parenthood is simply an updated version of these tactics, meant not to uncover the truth but to harass and intimidate health care professionals.”
Last month PFAW released a report, “Chipping Away at Choice,” on seven tactics anti-choice legislators and activists are using to erode reproductive health care access across the country. PFAW’s Right Wing Watch blog also monitors and documents the ongoing activities of anti-choice right-wing activists.
Miranda Blue is available for interviews with the press. To arrange one, please contact Layne Amerikaner at firstname.lastname@example.org.
This piece originally appeared in the Huffington Post.
Today Senate Republicans are preparing to vote on legislation to defund Planned Parenthood. GOP presidential candidates including Ted Cruz, Ben Carson, and Rand Paul have jumped on the bandwagon, with Paul calling for a stop to "any penny of money" going to the organization. Jeb Bush called for a congressional investigation.
It's obvious that these attacks are the latest right-wing tactic aimed not only at destroying Planned Parenthood but also at a woman's right to control her own body. It's a campaign borrowing a page from a very old, very repetitive playbook.
But let's be clear about what it means when Republican politicians crusade, over and over, to defund Planned Parenthood.
Calling to defund Planned Parenthood is calling to prevent low-income women from getting lifesaving cancer screenings. It's calling to prevent HIV testing, well-woman exams, and other basic medical services. No matter how you cut it, it's an attack on the health and well-being of women, especially on those least able to afford cuts in services.
Reproductive health advocate Clare Coleman, who formerly headed up a network of Planned Parenthood clinics in New York state, said that although their medical centers nationwide serve patients of all ages, races, genders, and incomes, she described their typical patient as "a working woman between 20 and 24, maybe in school, often with children." That patient, Coleman wrote, lives on an "edge" where "you know you're always one emergency away from everything falling apart."
Calling to defund Planned Parenthood is calling to take away medical care from women who are already struggling to make ends meet.
I have dedicated decades of my life to the opposite work: the movement to make sure women can make our own medical decisions and shape our own futures in a system that respects our autonomy. The struggle to make sure all women, especially women of color and low-income women, have access to reproductive health and reproductive justice.
These GOP leaders, despite lip service to "rebranding" efforts aimed at reaching more women, seem dead-set on just the opposite.
If they are truly concerned about reaching women, maybe they should avoid making the most marginalized women the target of their regressive policy proposals. Maybe they should avoid attacking medical centers that one in five women has relied on.
While GOP politicians repeat tired, dishonest talking points about defunding the "abortion industry," dedicated staff at Planned Parenthood health centers willcontinue to provide critical medical care to people across the country. Who's really fighting for women?
The Tenth Circuit today released its opinion in Little Sisters of the Poor v. Burwell, becoming the latest federal appellate court to reject the claim that the Obama Administration’s contraception coverage accommodation for religious nonprofits violates their religious liberty.
This is the latest effort by the far right to redefine “religious liberty” and the Religious Freedom Restoration Act (RFRA) to use as a sword to deprive third parties of their legal rights. Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.
The Tenth Circuit now joins the DC Circuit, the Third Circuit, the Fifth Circuit, and the Seventh Circuit in rejecting this attack on the accommodation for religious nonprofits. Notably, all these decisions came after the Supreme Court rewrote the Religious Freedom Restoration Act (RFRA) in the Hobby Lobby case, giving certain for-profit corporations and their owners greater latitude to exempt themselves from laws they find personally offensive. (The Sixth Circuit also reached the same conclusion, but it is still in the process of reconsidering it to make sure it is consistent with Hobby Lobby.)
The Obama Administration created a process whereby religious nonprofits can exempt themselves from the federal requirement that its employees have certain contraception healthcare coverage: Fill out a form (or now, just send a letter) and let the Department of Health and Human Services know that you won’t be providing it and say who your insurance carrier is, so that officials can inform them of their legal requirements to provide the coverage. The religious right has called even this accommodation a violation of the religious liberty rights of nonprofits, saying it makes them complicit in the provision of contraception that violates their religious beliefs.
The Tenth Circuit concluded that the accommodation does not substantially burden Plaintiffs’ religious exercise and therefore does not violate RFRA. The court stated:
The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity.
The court does not question the sincerity of the plaintiffs’ assertion that filling out the form violates their religious beliefs. But it also pointed out that under RFRA, whether a burden is substantial is a legal question that is up to the court, not the plaintiff, to answer:
If plaintiffs could assert and establish that a burden is “substantial” without any possibility of judicial scrutiny, the word “substantial” would become wholly devoid of independent meaning. Furthermore, accepting any burden alleged by Plaintiffs as “substantial” would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise. (internal citation removed)
Whether it’s women’s ability to access their legal right to healthcare or same-sex couples’ ability to exercise their constitutional right to marry, imagine the chaos if people could simply exempt themselves from – and severely weaken – laws they disapprove of by citing their personal religious beliefs.
But that is a recipe for a Balkanized society, not a healthy pluralistic democracy. Citing a previous case, the Tenth Circuit states: “Law accommodates religion; it cannot wholly exempt religion from the reach of the law.”
The following is a guest blog by Montana Representative Jenny Eck, a member of People For the American Way Foundation’s Young Elected Officials Network and Minority Whip in the Montana House of Representatives.
It hasn’t been easy, but after years of debate and hard work, Montana now has a law extending the unemployment benefits available to survivors of domestic violence, sexual assault, or stalking. This is a huge development. It means that someone trying to leave an abusive spouse can now focus on tasks like seeking counsel, navigating the legal system, looking for a new place to live, moving children into a new school district, or finding another job in a new town – without the added burden of finding the money to make it all happen.
At the bill’s signing, Governor Steve Bullock said, “No Montanan should be forced to choose between the physical safety of themselves and their children, and their economic security.” It’s a stark choice, and one that nobody should have to make.
Yet for the hundreds of women in recent years who have been murdered at their workplace by current or former intimate partners, this choice is all too real. Intimate partner violence is a leading cause of fatalities for women at work, and women are at a significantly higher risk than men of being the target of a violent act while on the clock. A 2012 Labor Department study found that of all workplace incidents of intimate partner violence from 1997 to 2010, 38 men were victims, while women numbered 346 over the same period. There are severe economic ramifications, too – according to the Centers for Disease Control and Prevention, women in the U.S. lose around 8 million days of paid work each year because of intimate partner violence.
Leaving an abusive relationship is hard enough; the state shouldn’t make it even harder. Yet historically, that is precisely what Montana has done. Until HB 306 was signed into law, survivors of sexual assault were eligible for just 10 weeks of unemployment insurance. Victims of a natural disaster, on the other hand, were entitled to 28 weeks of benefits. This disparity was shocking; surely suffering the trauma of sexual assault can be just as debilitating as living through an earthquake or tornado.
The new law corrects this imbalance. Extending support to these survivors was the right thing to do, and it will save lives as a result.
Last week, Young People For (YP4) Director Joy Lawson, YP4 Fellowship Associate Vidushani Jayalal, and current YP4 Fellow Alyssah Roth of El Paso, TX, served as trainers during the pre-conference of the fifth annual “Take Root” reproductive justice conference in Norman, OK.
“Take Root” focuses on sharing the unique perspectives, experiences, and lessons learned from organizing around reproductive justice in conservative states. This year, YP4 developed and led the pre-conference to engage “Take Root” participants on guiding principles for social justice organizing. Participants took part in workshops and conversations on values-centered organizing, navigating ideologies in the reproductive justice movement, and more.
Additionally, several YP4 Fellows and alumni participated in the conference and led workshops and panels related to building access to the reproductive justice movement in under-resourced areas. After the workshops, many of the participants reflected that the trainings gave them “a vision of what they wanted to accomplish and what the process might look like.”
YP4 is a year-long leadership development program that helps a diverse set of young leaders turn their ideals into actions and create lasting change on their campuses and in their communities. YP4 develops Fellows’ leadership capacity and strategic thinking through a capstone project — the Blueprint for Social Justice — and offers opportunities to connect with others creating change across the country.
WASHINGTON — Today the Senate failed to overcome a Republican filibuster of the Protect Women’s Health from Corporate Interference Act (S. 2578), a bill to fix the harm done by the Supreme Court’s recent Hobby Lobby decision.
People For the American Way Executive Vice President Marge Baker released the following statement:
“With today’s filibuster, Senate Republicans aligned themselves with the Supreme Court’s conservative majority in valuing the ‘rights’ of corporations over the rights of real women. And once again, they’ve refused to allow a critically important issue even to come up for a yes-or-no vote.
“This blatant obstruction is unacceptable. The majority of Americans understand that businesses shouldn’t be able to deny women health care. But Congressional Republicans sent a clear message to women: your access to birth control is less important than pushing our own right-wing agenda.”
More than 100,000 people have signed People For the American Way’s petition urging Congress to override the damaging Hobby Lobby decision.
Days after the Supreme Court handed down its damaging 5-4 decision in Burwell v. Hobby Lobby, SCOTUS issued an order that underscored the danger that Hobby Lobby poses for women’s health.
In Wheaton College v. Burwell, SCOTUS temporarily granted relief to Wheaton College, a religious institution that is “categorically” opposed to providing contraceptive services, from the contraception coverage compromise solution that the Court explicitly endorsed in Hobby Lobby. The order says that Wheaton may be exempt from submitting a form that would inform the government that they object to covering birth control. Wheaton College argued that submitting this form would make it “complicit in the provision of contraceptive coverage.” The temporary order indicates that the Court’s majority may accept this problematic argument.
In what Think Progress called a “blistering dissent” to the order, Justice Sonia Sotomayor — joined by the two other female Justices Elena Kagan and Ruth Bader Ginsburg — sharply criticized the order. Sotomayor wrote in the dissent:
“Those who are bound by our decisions usually believe they can take us at our word. Not so today.”
While this order is temporary until the case may be heard in front of the Court, the female Justices’ strong dissent demonstrates not only the division within the Court, but also the importance of having diversity on our courts. Women on the bench provide a critically important perspective on all cases, but especially those that deal with women’s lives. It is more important than ever, when women’s rights are under assault, that women are more fairly represented at all levels of government.
WASHINGTON – In response to today’s 5-4 Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc., the female clergy members of People For the American Way Foundation’s African American Ministers Leadership Council released the following statement:
“In today’s Hobby Lobby decision, the men of the Supreme Court’s conservative majority took special pains to argue that companies can’t dictate all of their employees’ health decisions, just those about women’s health.
“This is a full-scale attack on women, and it’s unacceptable. Today’s ruling threatens to prevent countless women from accessing the reproductive health services they need. Women’s health decisions should be between them and their doctors, not them and their employers.
“As faith leaders, we are deeply concerned about the distortion of the concept of religious liberty in today’s decision. Allowing corporations to infringe on the rights of their employees in the name of religious freedom is not what our Constitution’s framers had in mind, and it’s not in line with our values as Americans.”
Crowds of activists and advocacy groups gathered outside while the Supreme Court heard oral arguments Tuesday in the Sebelius v. Hobby Lobby Inc. case.
Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg did not shy away from asking difficult questions that demonstrate the broad implications this case could have. Justices Sotomayor and Kagan voiced concerns regarding the implications of a ruling for the first time in our nation’s history that for-profit corporations have religious rights. Both justices questioned whether this decision would allow companies to deny access to coverage of not only contraceptive methods, but also of other lifesaving procedures employers might object to on religious grounds—like blood transfusions or vaccines.
The Huffington Post quotes Justice Kagan as saying, “There are quite a number of medical treatments that could be religiously objected to… Everything would be piecemeal, nothing would be uniform.”
Pushing the issue further, Justice Sotomayor asked, “How are courts supposed to know whether a corporation holds a particular religious belief?”
Similarly, Justice Ruth Bader Ginsburg stated that the Religious Freedom Restoration Act
was a law that was passed overwhelmingly [by] both houses of Congress. People from all sides of the political spectrum voted for it. It seems strange that there would have been that tremendous uniformity if it means [corporations are covered].
[T]here was an effort to adopt a … specific conscience amendment in 2012, and the Senate rejected that… That amendment would have enabled secular employers and insurance providers to deny coverage on the basis of religious beliefs or moral convictions. It was specifically geared to secular employers and insurance providers. And that…was rejected.
Justice Kagan noted that RFRA was considered non-controversial when it passed, an unlikely reaction if it had been understood to open the door to employers citing religious objections to complying with laws relating to sex discrimination, minimum wage, family leave, or child labor.
Justice Kagan also noted that women are “quite tangibly harmed” when employers don’t provide contraceptive coverage. This decision, however, could have far-reaching implications beyond women’s reproductive rights since this case deals with some of the same core issues seen in “right to discriminate” bills like Arizona’s, as we pointed out yesterday morning.
Last month, as Arizona governor Jan Brewer deliberated whether to sign or veto a law that would have allowed businesses to discriminate against LGBT customers, the public outcry was immense. Senators Jeff Flake and John McCain shared their opposition via Twitter. Companies including American Airlines, Apple, and AT&T urged a veto. Multiple state senators who had voted for SB 1062 asked Gov. Brewer to veto it. When she did, advocacy groups praised the decision and many in Arizona and across the country breathed a well-deserved sigh of relief.
But it turns out that sigh may have been premature.
This morning the Supreme Court will hear arguments in Sebelius v. Hobby Lobby Stores, Inc., a case that, on its face, appears to be dealing with a different issue – women’s access to contraception – but in fact grapples with some of the same core issues in play with “right to discriminate” bills like Arizona’s. In the Hobby Lobby case, as in its companion case Conestoga Wood Specialities v. Sebelius, corporations are trying to avoid complying with the contraception mandate of the Affordable Care Act. But both the Supreme Court cases and the “right to discriminate” bills address the question of whether for-profit corporations have religious rights and can use those “rights” in a way that brings harm to others.
Comparing the vetoed Arizona bill to efforts to let companies deny covering contraception, National Women’s Law Center vice president Emily Martin put it like this: “What you’re seeing in both cases are corporations asserting the right to break the law in the name of religion, even if it results in harm and discrimination for third parties.” And The New Yorker’s Jeffrey Toobin noted,
Indeed, a victory for Hobby Lobby might bring in an Arizona-style rule through the back door….The Arizona law and the Hobby Lobby case represent two sides of the same coin. Both assert that the invocation of a religious belief allows a company to opt out of a government requirement that applies to everyone else.
But corporations have never had religious rights, and as affiliate PFAW Foundation senior fellow Jamie Raskin wrote in a recent report, that concept is simply “absurd.”
[I]t is time for the Court to restore some reality to the conversation. Business corporations do not belong to religions and they do not worship God. We do not protect anyone’s religious free exercise rights by denying millions of women workers access to contraception.
Guest post from Reverend Dr. Geraldine Pemberton, Assistant Pastor of New Hope Baptist Church in Philadelphia and member of PFAW Foundation’s African American Ministers Leadership Council.
As a 74 year old retired nurse, I can remember the original March on Washington well. I wasn’t able to be there in person that day, but many of my family members were. After marching with Dr. King and more than 200,000 other Americans, they were inspired to come home and fight for justice.
I myself am of the Jim Crow era. The injustices that Dr. King described that day as the “chains of discrimination” were injustices I faced first-hand. My father, who was born in North Carolina, would take my family down from Philadelphia for visits to his home state. He would try to prepare us as much as he could, but it was always overwhelming. I remember that once we passed the Mason-Dixon line, we couldn’t use most bathrooms. We would have to use outhouses behind gas stations instead.
Today I can see how far we’ve come, but also how much further we still have to go. I have spent much of my life fighting the injustices that drove the first March on Washington, especially health disparities facing women of color. Justice, I have learned, is a very big umbrella that must include equality for women. A just society has to be one that values women’s voices and fights back against health disparities that threaten black women’s lives.
Twenty years after that march, I went to another major event that inspired people from all over to drop what they were doing and travel across the country – the 1983 Spelman College conference on women’s health, which birthed what is now the Black Women’s Health Imperative. My friend and I saw a flyer for it but didn’t think we could afford to go. We maxed out our credit cards and drove down to Atlanta. Thousands of women showed up for the conference – young women, older women, women with children, women who had hitchhiked there. We just showed up - we had to be there.
That conference unfolded into a lifetime of work in pursuit of improving the health outcomes of African American women. As a former Director of Nursing and a current Health Committee Director for an alliance of Black clergy in Philadelphia, I know that women of color need improved access to care and greater provider sensitivity. Women need more information on the diseases that affect us most. And as a 74 year old Philadelphian, I’m still fighting for women’s health and justice. This year I am organizing health forums at churches throughout the city to give women more information about diseases, healthy living, and greater access to health services though the Patient Protection and Affordable Health Care Act commonly known as “Obamacare.”
The first health forum is this weekend – fifty years after the March on Washington. In so many ways, we are still marching.