Obamacare Opponents Cite Schumer in Bid to Defeat Contraception Mandate

'It's very important to this case,' says attorney working on Hobby Lobby lawsuit.

A law introduced two decades ago by Sen. Chuck Schumer, D-N.Y., is a key part of the legal case against the federal employer contraception mandate.
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The U.S. Supreme Court announced Tuesday it will hear a challenge to President Barack Obama's 2010 health care law brought by employers who wish to omit certain contraceptives from company health insurance policies for religious reasons. The legal team backing one of the employers believes a 1993 law introduced by Sen. Chuck Schumer, D-N.Y., could hand them a win.

Schumer, at the time a congressman, introduced the legislation, the Religious Freedom Restoration Act, to reverse the effects of the Supreme Court's 1990 Employment Division v. Smith decision. The court had decided an American Indian man who took peyote lacked a constitutional right to violate federal drug law.

Justice Antonin Scalia, a conservative Catholic, said in the court's majority opinion that liberally exempting religious objectors from laws "would be courting anarchy."

"[T]hat danger increases in direct proportion to the society's diversity of religious beliefs," Scalia warned. "The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind."

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Scalia also noted: "Judging the centrality of different religious practices is akin to the unacceptable 'business of evaluating the relative merits of differing religious claims.'"

The Schumer-introduced bill responded to Scalia's opinion by declaring the government "shall not substantially burden a person's exercise of religion." It sailed through the House, passed the Senate with 97 votes and was signed into law by President Bill Clinton.

"It's very important to this case," says Lori Windham, a lawyer at the Becket Fund for Religious Liberty who is working on one of the cases the Supreme Court will consider. The case is brought by Hobby Lobby, a 578-store arts and crafts chain with around 13,000 employees, and its owners, David Green and his family.

"That [law] is how the Greens and their family businesses won a victory from the 10th Circuit Court of Appeals and we believe that's what the Supreme Court will likely focus on," she said.

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Ironically, Schumer is a prominent supporter of the contraceptive mandate. Schumer's office didn't respond to a request for comment about the case, but he voted March 1 against a Republican attempt to repeal the mandate.

The Supreme Court could conceivably side with the company on First Amendment grounds alone, Windham says. The appeals court also cited the Supreme Court's interpretation of the First Amendment in the 2010 Citizens United v. FEC decision, saying, "We see no reason the Supreme Court would recognize constitutional protection for a corporation's political expression but not its religious expression."

Windham says the Supreme Court is likely to rule only on the enforcement of the U.S. Department of Health and Human Services directive that, pursuant to the law, companies must provide full-time employees with policies covering contraceptives – rather than take a wrecking ball to the legislation. The law's employer mandate takes effect in Jan. 2015.

The Green family believes certain IUDs and morning-after emergency contraceptives could result in the death of newly conceived human beings.

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"[They] do not object to all forms of contraceptives," Windham stressed. "They provide preventive contraceptives – they have for years [and] they are going to continue to provide them. It's only four potentially life-terminating drugs and devices they object to."

The Supreme Court will hear the Green family's case in conjunction with one brought by Mennonite business owners in Pennsylvania who have similar objections.

The massive 2010 health care law first appeared before the Supreme Court in March 2012 , with opponents arguing unsuccessfully that the law's individual health insurance mandate is unconstitutional. That part of the law – under which penalties of $695 per person will be charged by 2016 – was declared a constitutionally permissible tax by the court on June 28, 2012. The court did rule, however, that the law cannot force states to expand Medicaid eligibility.