Sen. Blumenthal blows smoke on Hobby Lobby

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Sen. Richard  Blumenthal

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Sen. Richard Blumenthal

Sen. Richard  Blumenthal

Sen. Richard Blumenthal

My junior senator, Richard Blumenthal, took it upon himself this week to write a letter to the CEO of Hobby Lobby, David Green, asking that his company defer to Connecticut law and provide the women who work in its East Haven and Manchester stores with “the full range of contraceptives approved by the FDA”–i.e. those contraceptives that the Supreme Court just said Hobby Lobby didn’t have to provide to its women employees because of its religious scruples.

Blumenthal does acknowledge that the Hobby Lobby decision “may provide your company with legal discretion to limit health insurance coverage for a range of contraceptives in certain circumstances,” but asks that the company respect a policy established with “strong bipartisan support” and which enjoys “broad public support” in the Nutmeg State.

As if.

So what’s Blumenthal up to? Well, the letter helps highlight the fact that he’s co-sponsoring the Protect Women’s Health From Corporate Interference Act, a bill designed to require for-profit companies to cover the full range of contraceptive services under Obamacare. Not that the bill is going anywhere in the Republican-controlled House of Representatives. But as Connecticut residents are only too well aware from his 20 years as their Attorney General, Blumenthal never lets an opportunity pass to call attention to what he’s doing for them.

The problem with his letter is that it obscures the actual legal situation–and this is something that we all should understand better than we have. So here goes–and pay attention, because this is going to be on the midterm.

The Hobby Lobby decision is entirely based on the Religious Freedom Restoration Act (RFRA), under which the federal government has to show that it is furthering a “compelling state interest” by the “least restrictive means” in order to defeat a claim of violating someone’s free exercise of religion. However, RFRA does not apply to state law, which (according to the Supreme Court’s Boerne decision) merely needs to be “neutral” and of “general applicability” in order to withstand a free exercise challenge. The point here is that Hobby Lobby is irrelevant to the applicability of Connecticut’s contraception mandate. With me so far?

OK, so if RFRA doesn’t negate Connecticut’s contraception mandate, why does Blumenthal have to beg Green to go along with it? The answer is that under the Employment Retirement Income Security Act (ERISA), organizations can avoid state insurance regulations by self-insuring through the establishment of ERISA trusts. And that’s just what Hobby Lobby has done. Indeed, quite a few religious non-profits have done the same precisely in order to avoid state contraception mandates.

However, there’s a catch. In 1983, the U.S. Supreme Court held in Shaw v. Delta Air Lines that the ERISA preemption did not apply to those state laws that are consistent with and promote the goals of Title VII of the Civil Rights Act. The court didn’t want companies to use the ERISA preemption to avoid state laws ensuring employees’ civil rights. And in 2000, the Equal Employment Opportunity Commission ruled that the failure of employers to include contraceptives in comprehensive prescription drug coverage constituted sex discrimination under Title VII. That ruling was upheld the following year by a U.S. District Court in Seattle in a case called Erickson v. Bartell Drug Co. 

As a result of these rulings, by 2007, 28 states had enacted contraception coverage mandates. That year, the Eighth Circuit Court of Appeals declined to follow Erickson, holding in In re Union Pacific Railroad Employment Practices Litigation that there was no violation of Title VII because the sexes were treated the same with respect to contraception benefits. Since then, no other federal appeals court (including the Supreme Court) has addressed the issue, which means that outside the Eighth Circuit (the states from Arkansas to North Dakota), all state contraception mandates except Illinois’ (which provides a religious exemption for for-profit companies) actually apply to Hobby Lobby.

Which means that Connecticut is within its rights to demand that Green provide the full range of contraceptive services to his women employees in East Haven and Manchester. And that Blumenthal shouldn’t be saying pretty please.*

*For expertise and research assistance, the author of this blog post would like to thank Tom Baker, William Maul Measey Professor of Law and Health Sciences at the University of Pennsylvania Law School; Sam Livingston, B.A. Trinity College 2014; and a health care lawyer for a large Connecticut insurance company.

  • William Barnett

    Well done, Mark!

    Now, will CT officials follow through? Do they need to?

  • Kevan Scott

    I don’t think Sen. Blumenthal was saying “pretty please”. I think he was pointing out the hypocrisy of the “fine’ folks at Hobby Lobby and of the hypocrisy of the decision of the Supreme Court itself. If this is American Democracy then I want no part of it, as there should be 0 reason that an employer should be involved in any of his/her’s employees health care decisions, especially contraceptive ones! In an earlier article you said that the Hobby Lobby decision would not really affect women and their availability to contraceptives all that much. Care to rethink that opinion, Mr. Silk? If anything we’re seeing that decision open the doors to corporations legally being able to withhold health care from people based on the corporations supposed “sincere” religious beliefs. Translated, that means that Christians can now legally force others to believe as they do. That is not freedom of religion, that is religion being forced on others their freedom and own religious beliefs be damned. We are rapidly becoming an American theocracy instead of an American democracy and I, for one, am against not only that form of governing, but am adamantly opposed to any religion, Christian or otherwise, that imposes their particuler brand of religion on others. Jesus never forced himself nor his beliefs on anyone, and if we say that we are followers of him, then isn’t it incumbent upon those of us who follow him to also mirror his love and respect for others, regardless of their religious beliefs? Of course it is, so why are today’s Christians lineing up to follow those who would force their beliefs on others so willingly? To allow one group to do that to another group is to invite someone to someday declare that your particuler beliefs aren’t exactly right and that it is now time to declare that your beliefs aren’t as valid as their’s. Now, suddenly, you find yourself or your family member not being able to have equal access to health care because that other group has a “sincere” religious belief against that needed health care. That’s how fascism works and how one who holds a “sincere” religious belief finds his or herself being the minority.

  • John Haas

    What about the fact that Connecticut has a state RFRA?