Here's How Democrats Could Workaround Hobby Lobby

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In the wake of the the Supreme Court's Hobby Lobby ruling, the question now is how Democrats can make sure women still have access to affordable contraceptives. While the court's ruling leaves the door open for an executive action, the White House has emphasized that "Congress should act to address the concerns of the women who are affected by this decision." A legislative alternative to the ruling would involve either limiting the religious rights of corporations, or protecting people from the religious beliefs of their employers. 

Part of the court's justification for ruling in favor of Hobby Lobby was that the government didn't prove that the contraception mandate — which requires insurance plans to cover contraceptives — was the least burdensome way to achieve the government's insurance goals without infringing on a corporation's religious rights. A less burdensome method is the compromise used to appease religious non-profits: instead of the non-profit paying for contraceptives, the insurer does. 

In his concurrence on the Hobby Lobby case, Justice Anthony Kennedy suggests that the administration could extend the exemption for non-profit religious organizations to for profits with new regulatory languageAs Mother Jones explains, most of the companies affected by the ruling are not self-insured, and the cost of contraceptives will fall on the insurer. In the case of companies that self-insure, a third-party plan administer will cover the cost, and get a break on some Obamacare taxes. The problem is that the administration wants to work through Congress, instead of issuing an executive order, and non-profit religious groups are already fighting the accommodation

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That leaves one of two legislative options. The Religious Freedom Restoration Act served as the basis of Hobby Lobby's defense, and The Huffington Post notes that there are two ways Democrats could attempt to amend the law by either: stating that corporations aren't counted as people or by adding language that protects individuals from having their employer's beliefs imposed on them. The liberal Center for American Progress has backed the latter idea, arguing that "federal lawmakers should consider adding language to RFRA that brings it to the level that Congress intended—providing strong religious-liberty protections for those who deserve it but ensuring the provided exemptions do not burden others."

This isn't likely to pass for three reasons: the regulatory fix is easier, House Republicans won't vote for it, and the administration is nervous about the unintended consequences of altering the law. As The Post explains, the ideal solution for President Obama would involve congressional action that simply restored birth control coverage to the women who just lost it.

This article is from the archive of our partner The Wire.