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July 10, 2014

Democrats Draft Bill To Reinstate the Contraception Mandate For All Businesses

I wrote this a few days ago, but forgot to post it. Still relevant.

We knew this was coming. The Democratic proposal, in short, is to simply say RFRA does not apply to the contraception mandate at least insofar as for-profit businesses are concerned (and, I suspect in the final wording, for non-profits too, although they claim the accommodation will be preserved in some form).

To this end, it says that an employer “shall not deny coverage of a specific health care item or service” where coverage is required under any provision of federal law. Moreover, it says, this requirement shall apply to employers notwithstanding the Religious Freedom Restoration Act.

This is what Democrats were too scared to include in the original Obamacare bill. Remember, they didn't want the Obamacare bill to be an "abortion" bill or a bill trampling religious rights, so they left this stuff out, leaving it up to HHS to implement the contraception and abortifacient coverage via regulation. Obviously, that doesn't fly anymore because the Supreme Court has recognized that neither Obamacare nor the HHS regulations implementing it were exempt from RFRA.

Democrats got a lot more comfortable with the "War on Women" meme during the Romney campaign. They'll be plenty happy to push this loser of a bill during election season.

Okay, so that's where we are. Democrats want to override Hobby Lobby by saying RFRA doesn't apply. It isn't going to happen, but it might just serve them to grab a few extra voters on the margin during the election. It is, generally, how a Congress would go about exempting a law from RFRA, which is just another law remember.

So this was sent to me by a friend who I don't know if he wants me to say he sent it. (He was pointing out its falsity to me). It has as I write this more than 28,000 shares on social media and is, well, misleading at best and outright false and facepalmworthy at worst.

This person, Caroline Schaeffer, whom I do not know, taunted Sen. Reid for one of his rambling, senile floor speeches in which he said this:

We have so much to address over the coming weeks, Mr. President. Sportsmen’s bill denied, the highway bill, emergency supplemental, manufacturing legislation… we going to do something about the Hobby Lobby legislation, we need to correct.

Schaeffer then went on to taunt back this civics lesson:

In classic Harry Reid fashion, it appears that the Senate Majority leader is unaware that there are three separate branches of government, and might be a bit confused about what the Supreme Court does.

Hobby Lobby… legislation? Senator Reid, I don’t think you know how this works. The Senate cannot undo a decision made by the Supreme Court, unless it wants to act outside of the Constitution. Not a problem for some in the Democratic Party, but there you have it.

Schaeffer then links a YouTube video for kids about the three branches of government.

Well, yes, but mostly no. The Senate cannot undo a decision of the Supreme Court by itself, sure. But I don't think that's what Reid was saying, nor is it reasonable to think that's what Reid was saying. Congress certainly can overturn the Supreme Court in a statutory decision like Hobby Lobby (as opposed to a decision resting on Constitutional interpretation like, oh, Citizens United). Congress would do it by passing, if you will, something like, oh, "Hobby Lobby legislation." That's completely within the constitutional separation of powers.

I'm not sure why she's taunting Reid for his "Bizarre Threat." He didn't say the Senate would overturn Hobby Lobby by itself, he said they had to pass some legislation and, I know he's pretty senile, but he still seems pretty clear that legislation has to go through the House at some point to become operative (in fact he was complaining about exactly that earlier today, too).

Anyway, 28,000 "shares." Misleading at best. Please, don't think for a second that Congress cannot override the Supreme Court in cases resting on statute. It can. That's, um, how the 3 branches of government work.

Also, while I'm covering things that are misleading, the Democrats proposing this bill insist that it does not amend RFRA. (See also my conversation with Sahil Kapur). But, of course it does.

The legislation, according to Kapur "clarifies that the Religious Freedom Restoration Act, the basis for the Supreme Court's ruling against the mandate, doesn't permit businesses to opt out of laws they may object to."

I know that words are hard for Democrats (see the subsidies lawsuits), but by "clarifying" that RFRA does not apply to businesses they are altering RFRA, which at the moment does apply to businesses. By which I mean, of course they're "amending RFRA." They just don't want to admit it because the other way of putting it would be to say Democrats are trying to repeal part of RFRA. "Senator, please explain your vote against religious freedom," is not something even Democrats are comfortable being asked.

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posted by Gabriel Malor at 10:02 AM

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