One might think that Senate Democrats, who face an uphill battle in this year’s midterms, would tread carefully on controversial ground. The last thing they need in a cycle that is almost certain to bounce hard against them is to give Republicans another rally point in tight races. Yet 19 of the Senate Democratic Caucus have decided to join the Obama administration in its effort at the Supreme Court in defending the HHS contraception mandate:
In a brief to be filed with the U.S. Supreme Court on Tuesday, 19 Democratic senators are siding with the Obama administration against evangelical Christian businessmen who argue that paying for their employees’ birth control, a requirement under Obamacare, violates their company’s religious freedom.
The senators—five of them women—argue in their “friend of the court” brief that the owners of the Oklahoma-based crafts store chain Hobby Lobby are not exempt from the Affordable Care Act’s contraceptive mandate simply because some forms of birth control offend their religious beliefs.
Hobby Lobby’s owners, David Green and his family, are suing the federal government over the mandate, which says large employers’ insurance plans must offer birth control without co-pays or else face steep fines.
A lower court upheld the Greens’ case, ruling that the 1993 Religious Freedom Restoration Act (RFRA) protects the Greens from having to adjust their insurance plans to cover contraception for their 13,000 employees. (RFRA says the government must have a compelling reason to infringe upon an individual’s religious beliefs, and that laws that do so must be narrowly tailored.)
The case is novel because religious freedom, enshrined in the First Amendment, typically has been thought to apply to individuals, churches and other religious nonprofits—not corporations. But the U.S. Court of Appeals for the Tenth Circuit, siding with Hobby Lobby, said the Supreme Court’s Citizens United decision in 2010 , which upheld a free-speech right for corporations, conferred a right to religious expression on businesses.
Frankly, this is a political loser in a cycle that will feature in large part criticism of of the failures and restrictions in top-down government mandates. These 19 Senators have now explicitly signed themselves onto what had been an executive-branch-only effort to force business owners to violate their religious beliefs and provide free contraception and sterilization for their employees. Now they have explicitly attached themselves, and politically attached all of their colleagues, to a case that at best makes the Obama administration look autocratic and arbitrary.
What exactly is the end game here? The Court will likely uphold their Citizens United ruling, and at the same time skewer HHS for taking a radical approach to the non-problem of birth control access instead of narrowly tailoring a solution. Even if they don’t, an amicus brief isn’t going to mean much in this court case, especially at this late date. All it does is tie the HHS contraception mandate around the necks of Senate Democrats, especially those whose fates are already hanging by a thread this cycle.
Note at the bottom of the article who signed onto this effort. It’s led by Patty Murray (WA), and not one of the signatories faces a competitive election this year. Don’t expect that to stop Republicans from challenging those Democratic incumbents in Senate races this year on this effort.