July 16, 2014

Kaine Statement On Filibuster Of Bill To Protect Women’s Health Care, Reverse Hobby Lobby Decision

WASHINGTON, D.C. – U.S. Senator Tim Kaine released the following statement today after a minority of Senators blocked the Senate from considering the Protect Women’s Health from Corporate Interference Act  or, the “Not My Boss’s Business Act,” legislation that would reverse the Supreme Court’s Burwell v. Hobby Lobby decision that denies women access to critical health care services:

“It’s extremely disappointing that a minority of Senators kept us from being able to consider legislation today that would protect women’s right to health care, including contraception, from interference by their employers – interference deemed fair game by the Supreme Court ‘s decision in the Hobby Lobby case. Contraception is an important preventive health service, not only for women, but also for our society. I do not believe the Court should be in the business of singling out one sincerely held religious belief over others, or saying employers can deny coverage of certain health services, but not others. That’s why it’s clear this decision was less about religious freedom, and more about a broad-based effort to deny women access to contraception. I will continue to do everything I can to reverse this attack on women’s health care rights.”

Full transcript of Sen. Kaine’s remarks in support of the Murray-Udall bill below: 

"I rise to describe my concern with the recent United States Supreme Court ruling in the Hobby Lobby case and also to describe my support for the Murray-Udall legislation which I’m cosponsoring and which we will act on later this week.

"First, Madam President, just a word about one item in the case that's not my main concern but that I think is just worthy of a passing comment and that is whether a corporation can have religious rights. Of course, individuals can have religious rights. Churches can have religious rights. Religiously affiliated organizations have religious rights. That has been recognized often. But do corporations have religious rights? Madam President, I would argue that the Supreme Court’s decision in Hobby Lobby is fundamentally at odds with the notion of what a corporation is. 

"Corporations exist for many reasons but, fundamentally, the core of a corporation is the creation of a fictional entity that is supposed to stand apart from the individual owners. That fictional entity has rights and responsibilities that are different than the rights and responsibilities of the owners. And, in fact, we create the corporate form to protect the individual owners. The individual owners, once a corporate form is created, as you know, are generally protected against legal liability. A corporation's actions if they are illegal can only be held against the corporation. And, except in very rare circumstances, the individuals who own the corporation are free from the liability that might flow from a corporation's acts. So the basic question is, if individuals decide to form a corporation to distance themselves and protect themselves from liability for a corporation's acts, how can they also presume to exercise their religious viewpoints, their personal, intimate religious viewpoints through the very form of the corporation?  It’s allowing the owners to have it both ways. Complete protection from legal liability but continued ability to exercise their personal and intimate religious viewpoints through the corporate form. I think the notion of corporate religious freedom is almost an oxymoron.

"The statute in question in this Supreme Court case, the RFRA statute, refers to the sincerely held religious beliefs of a person. What are the sincerely held religious beliefs of a corporation under the corporate charter that would be granted by states? In order to determine that, should we inquire, in this instance, for example, whether the families of the owners ever used contraception? If, in fact, they did, would that undermine a claim that they have a sincerely held religious belief against contraception? What if it could be shown that the owners invested in stocks in companies that produce contraception? Would that undermine the claim that a corporation has a sincerely held religious belief against contraception? I don't know the answers to these questions but I think the mere raising of the questions demonstrates again that the notion of a corporation exercising religious beliefs is highly suspect.

"But, Madam President, I don't think the Hobby Lobby case was about religious freedom. Let me talk to you about what I read in the opinion. I practiced law, including constitutional law for 17 years. I’ve read the opinion. I don't think this is a case about religious freedom. I think the opinion in the Hobby Lobby case is instead part of an anti-contraception movement whose political goal is not just to encourage women or families to not use contraception but instead it is geared toward the reduction of social access to contraception for all. This isn't a case about religious freedom. It’s a case that's very focused on attempts to reduce access to contraception throughout American society.

"The court does something in the opinion that is fascinating. I guess there's a phrase -- I’m not a poker player, but there's a phrase, if you play a lot of poker, that you should watch for their tell. If they reveal, you know, by knocking on the table or something that, oh, well, they’re bluffing now. You watch for the tell. And I think the Hobby Lobby majority opinion has a tell in it that tells us that this case is not about religious freedom. In response to a notion raised in the dissent, well, hold on a second, if you allow this corporation to deny coverage for contraception because it has a sincerely held religious belief   against contraception, well, there are other religions and other corporations that might have a sincerely held religious belief against transfusions. That is a sincere belief of certain religions commonly practiced in America. Against vaccination; that is a sincerely held religious belief of certain religions in America. There are other sincerely held religious beliefs.  But, Madam President, the majority in this opinion says, "oh, don’t worry, this is just about contraception. You don't need to worry that the rationale in this case would be used to allow an employer to exclude vaccination or exclude transfusions." Well, if those are religious beliefs every bit as sincere as some who think contraception is bad, why wouldn't this ruling apply to those kinds of coverages?

"The fact that the Supreme Court took such care in the majority opinion to say, "don't worry; it's not going to apply to that,” tells me that this is not a case about religious freedom. Because if it were a case about religious freedom, then a sincerely held religious belief about transfusions or vaccinations would be equally implicated by this case. Instead, the Court is very clearly telling the world, don't worry; you don't need to worry about this stuff. So it's not about religious freedom. I read this case as a very candid admission that what the case is really about is contraception access. There is an unfortunate legal movement in this country, that is kind of surprising, whose focus is to deny women access to contraception even though access to contraception has been constitutionally protected in this country since 1967, nearly 50 years. And I am stunned; I’m reluctant as a lawyer to criticize court opinions. I mean, lawyers always have different points of view and you have to give some latitude that a court might decide something in a different way than you think. But I’m stunned to see in the rationale expressed by the majority that this Court is joining an ideological anti-access movement.

"Contraception access is important to women, it's important to families, and it's important to society. For women, contraception is important not only surrounding the planning of a pregnancy, but the hormones in contraception are often prescribed for all manner of other medical conditions, some  directly related to pregnancy and reproduction and some unconnected to pregnancy or reproduction. The access to contraception is critically important and that's why the panel that looked at implementing the Affordable Care Act found that contraception was an important part of the Act's prevention. Prevention is good. Contraception is part of prevention. Contraception, Madam President is also costly. So when a company strips that coverage away from employees and just says you can buy umps, that is more than an expense, especially in a time where wages have been stagnant. It is a significant expense. The notion that that coverage would be stripped away from thousands and thousands of employees is not a more than burden at all; it's a significant burden on their lives. Contraception is not only important for women, it's important for society.

"Madam President, contraception and the access to contraception is achieving important social goals. From 2008 to 2011, just in three years, the number of abortions in the United States fell by 13%. Teen pregnancy in this nation has been falling steadily since1991. Why are both of these things happening? Those who study these laudable trends conclude that access to contraception is one of the main reasons that abortion is falling and that teen pregnancy is falling. Now, it would seem like those are laudable trends that we would want to continue, and that access to contraception therefore is very important.  But the court instead finds otherwise.

"Madam President, I want to conclude and say I don't think this is a case about religious freedom. I think the court has strangely joined an anti-contraception ideological crusade. But I want to say a word about religious freedom because it's critically important. I’m a lifelong catholic. I served as a missionary in Honduras in 1980 and 1981 and I’m a Virginian. And it was a Virginian, James Madison, who wrote the draft of the constitution including the first amendment, the bill of rights that protects our right to religious freedom. Gary Wills, the American historian, says every idea in the constitution was already part of somebody else's constitution or laws. Our drafters did a great job of finding the best and putting it in but there was only one unique thing in the American constitution that wasn't part of any organic law before us and that was freedom of religion. Jefferson wrote it into Virginia law, the statute of religious freedom in 1780, the basic idea was that no one can be punished or preferred for their choice of worship or for their choice not to worship. And that has been a critical component of American life for a very long time. And so, religious freedom is incredibly important. There is nothing about the bill we will take up on the floor tomorrow that impinges upon religious freedom.

"Madam President, as you know, whether the church or religiously affiliated institution, or an individual or even a corporation has as their view that contraception is wrong, they can take to the airwaves, they can run a newspaper ad. They can go stand on a street corner. They can encourage anyone they want by explaining the merits of their view and hoping to persuade someone that they're right. And they are protected in doing that. They’re protected in their religious liberty to try to encourage people to follow their points of view. But when these entities try to go beyond that, in this case corporations, and use legal mechanisms not just to encourage people, whether it's lawsuits or personhood amendments or other things that we see popping up in states and here in this body, not just to discourage use of contraception, but instead to reduce access to contraception for women- even women who do not share their moral point of view, who do not share their particular religion, then I view that as extreme extremely troubling and actually contrary to the notion of religious freedom that is established in the first amendment. Advocate a moral position, but don't force it on to people who have a different moral viewpoint.

"So, Madam President, in conclusion I support the bill that we will debate tomorrow because it will protect the access to contraception. Whether people choose to use contraception or not will be up to them and to their own medical and their own moral calculation, and that is as it should be in a society that is supposed to protect the rights of all. Madam President, I yield the floor. 

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