How Joe Biden Helped Make the Case Against Obamacare's Contraceptive Requirement



When Solicitor General Donald Verrilli stands before the U.S. Supreme Court next month to defend the Patient Protection and Affordable Care Act against the charge that it violates religious freedom by requiring employers to provide certain forms of birth control coverage, the Obama administration will be facing a surprising opponent in the case: former U.S. senator and current Vice President Joe Biden. As Robert Barnes explains in The Washington Post, then-Sen. Biden was one of many leading Democrats to support the passage of the 1993 Religious Freedom Restoration Act (RFRA), the very law now being used to challenge Obamacare. Barnes writes:

When the RFRA was proposed, it had the support of the American Civil Liberties Union and religious lobbyists, rolled through Congress with near-unanimous support, and was happily signed by President Bill Clinton.

Now it is at the center of challenges against the contraceptive requirement. The Supreme Court next month will hear from arts-and-crafts giant Hobby Lobby and a Pennsylvania cabinet-making company named Conestoga Wood; owners of both enterprises say they run their businesses to reflect their deeply held religious beliefs.

The First Amendment holds that "Congress shall make no law respecting an establishment of religion [the establishment clause] nor prohibiting the free exercise thereof [the free-exercise clause]." Against that backdrop, the cases raise important questions of separation of church and state, equal treatment for female workers, and whether corporations, a la Citizens United, have a right of religious expression to which the RFRA applies.

Read the whole thing here.

For a libertarian critique of the health care law's birth control requirement, see Jacob Sullum's "Obamacare and Contraception Exceptions."

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  1. This is a big fucking deal.

  2. I would think Joe Biden’s existence is the case FOR the requirement.

  3. Interestingly enough a recent amicus brief in the case is arguing that RFRA is itself unconstitutional since it violates the separation of powers, is beyond the enumerated powers of Congress and amounts to an Establishment of Religion.


    1. how does it amount to an establishment? I don’t believe it either raises one faith above the others or diminishes a particular faith.

      1. The idea is that it gives religious people all kinds of exemptions and benefits that do not apply for the non-religious.

        1. Imagine, for example, if the federal government passed a law that said that every member of a church did not have to pay federal income tax. That’s the idea, anyway.

          1. an exemption from church folks paying federal tax seems a bit off from a law that forces them to pay for things they morally oppose. It’s like telling the mosques and synagogues that bacon WILL be on the menu, because FYTW.

            1. Well, of course our law does not currently reflect a lot of things that are important to libertarians. To the law an exemption from a mandate and an exemption from a taxation will both seem like benefits carved out for a group. Remember that the original ‘imposition’ that got RFRA passed was the denial of unemployment benefits to two Native Americans who were denied because they were found to have used peyote but claimed it was part of their religious exercise.

        2. Where’s your no god now, atheists?

          1. Um…nowhere?

            1. ?Deep Down in Their Hearts?

    2. True. Eventually a company run by Jehovah’s Witnesses will refuse to allow their insurer to pay for blood transfusions.

      That would be fine if their employees were all JW and would refuse blood transfusions anyway.

      Then eventually all ESC treatments will be stopped by the Hobby Lobby types.

      “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself”


      1. Ideally there would be no mandate of this type. In fact, ideally the government would not use the tax code to push most into insurance arrangements through their employer, and individuals could shop to whatever insurerers offering whatever coverage the two would negotiate. But yes, under this arrangement exemptions from such mandates will be seen as a benefit for the religious.

        1. As they should because they are. Your ideal situation of not having the government do X should render the decision to label the law unconstitutional. An exemption for Quakers to not be drafted should render a draft unconstitutional. Lots of things should be rendered unconstitutional because of the necessary enforcement by government thugs.

          Voluntary interactions are cool, man.

      2. “Eventually a company run by Jehovah’s Witnesses will refuse to allow their insurer to pay for blood transfusions.”

        So what?

    3. The article mentions this brief.

    4. The “Freedom From Religion Foundation”? Really?

  4. The basic point about the HHS mandate, and the attempt to use the case to get rid of RFRA, is that the Supreme Court was willing to override the 10th Amendment for the sake of Obamacare, and now they’re being asked to override the 1st Amendment as well.

    Scalia’s 1990 opinion was based on the idea that religious exemptions were the business of the legislative bodies, not the courts. Well, the Congress which passed RFRA was a legislative body – while I agree it can’t impose sweeping RFRA requirements on the states, here it’s imposing those requirements on the feds.

    And in any case, Scalia was mistaken about the First Amendment, which prohibits any law restricting the free exercise of religion, even if that law restricts the non-religious at the same time.

  5. whether corporations, a la Citizens United many churches, have a right of religious expression

    I eagerly await the SCOTUS high-wire act that both protects the rights of organized groups to religious freedom, and denies the rights of organized groups to religious freedom.

  6. Maybe not everyone knows that under-thread component in multi-needle lockstitch quilting and in “schiffli” embroidery is called cocoon bobbin.
    Container which holds the bobbin is called shuttle or schiffli by the embroidery industry.
    The yarn is drawn off from the inside to the outside to avoid friction between shuttle and yarn.
    A proper thread lubrication is one of the major determinants of the performance of cocoon bobbins.
    Especially synthetic threads need proper and accurate lubrication.

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