BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SR 55 (Jackson)
As Amended August 4, 2014
Hearing Date: August 12, 2014
Fiscal: No
Urgency: No
RD
SUBJECT
Relative to Reproductive Health
DESCRIPTION
This measure would make various statements relating to women's
reproductive health and the recent U.S. Supreme Court decision
in Burwell v. Hobby Lobby, Inc. (2014). This measure would
declare the Senate's recognition of the critical importance of a
continued commitment to reproductive health care and access and
urge the U.S. Senate to reconsider and approve Senate Bill 2578,
referred to as the "Not My Boss's Business Act," which would
prevent employers from denying coverage of contraceptives
regardless of their religious views. The measure would also
declare that the California State Senate reaffirms the decision
of Roe v. Wade (1973).
BACKGROUND
In 1999, California enacted the Women's Contraception Equity Act
(Act) (AB 39 (Hertzberg, Ch. 532, Stats. 1999)) to require
health care service plan contracts that cover outpatient
prescription drugs to also cover various prescription
contraceptive methods approved by the Food and Drug
Administration (FDA). The Act contains a religious employer
exemption which authorizes a religious employer to request a
health care service plan contract without coverage for federal
FDA-approved contraceptive methods that are contrary to the
religious employer's religious tenets.
More recently, in 2010, President Barack Obama signed into law
the federal Patient Protection and Affordable Care Act (ACA),
(more)
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which ensures health care coverage for all Americans, regardless
of preexisting conditions or sex, by imposing an individual
mandate and enacting various reforms to the health insurance
market. For example, any non-grandfathered group health plan
and health insurance issuer offering group or individual
insurance coverage must provide coverage, without imposing
cost-sharing requirements (such as co-pays, co-insurance, or
deductibles), for certain preventive services. Most pertinent
to this bill, under the ACA and resulting U.S. Department of
Health and Human Services (HHS) regulations, health plans must
cover all FDA-approved methods of contraception for women with
no out-of-pocket costs to the individual, with the exception of
religious employers. For these purposes, religious employers
are defined under the ACA to mean nonprofit organizations under
specified provisions of the Internal Revenue Code, which
primarily apply to churches and other houses of worship. Other
accommodations are made for non-exempt, non-profit religious
organizations that object to contraceptive coverage on religious
grounds. Under an accommodation, an eligible organization does
not have to contract, arrange, pay, or refer for contraceptive
coverage, though separate payments for contraceptive services
are available for women in the health plan of the organization,
at no cost to the women or to the organization.
As a result of the "contraceptive mandate" in ACA, several
for-profit companies that would not otherwise qualify under the
existing ACA accommodations brought suit alleging that the law's
mandate violates the company owners' exercise of religion. The
U.S. Supreme Court agreed and held in the case of Burwell v.
Hobby Lobby, Inc. (2014) U.S. LEXIS 4505 that the HHS
regulations that impose an obligation to provide four specific
FDA-approved methods of contraceptives ("the contraceptive
mandate"), as applied to closely-held corporations whose owners
held religious beliefs that providing coverage for those
specific contraceptives will help facilitate abortions, violates
the federal Religious Freedom Restoration Act (RFRA). In
response to the Hobby Lobby decision, Senators Patty Murray
(D-Wash.) and Mark Udall (D-Colo.) introduced Senate Bill 2578,
the ''Protect Women's Health from Corporate Interference Act of
2014,'' or "Not My Boss's Business Act," to overturn that
decision, but a motion to debate the bill on the floor was
defeated 56-43 (the motion required 60 votes in order to
advance), on July 16th. Senate Majority Leader Harry Reid has
indicated that the issue will be voted on again "before the year
is out." (Hunter, Birth-Control Insurance Bill Rejected by U.S.
Senate, Bloomberg (Jul. 16, 2014)
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[as of Aug. 6, 2014].)
This measure would make various statements relating to women's
reproductive health and the recent decision in Hobby Lobby and
declare the Senate's recognition of the critical importance of a
continued commitment to reproductive health care and access.
This measure would urge the U.S. Senate to reconsider and
approve Senate Bill 2578 and declare that the California Senate
reaffirms the decision of Roe v. Wade (1973).
CHANGES TO EXISTING LAW
This measure would make various statements relating to women's
reproductive health, including, among other things:
the U.S. Supreme Court has previously recognized in Planned
Parenthood of Southeastern Pennsylvania v. Casey (1992) 505
U.S. 833, 856, that "[t]he ability of women to participate
equally in the economic and social life of the Nation has been
facilitated by their ability to control their reproductive
lives;"
the U.S. Congress required health plans to cover all Food and
Drug Administration-approved methods of contraception for
women with no out-of-pocket costs as part of the federal
Patient Protection and Affordable Care Act (ACA), and nearly
30 million women across the United States have already
benefited from that provision;
in Burwell v. Hobby Lobby Stores, Inc. (2014) 573 U.S. ____,
the Supreme Court concluded that closely-held corporations
cannot be required to provide contraceptive coverage if the
corporations' owners have religious objections to the
contraception;
according to the Centers for Disease Control's National Center
for Health Statistics, more than 99 percent of women use birth
control at some point in their lives, and approximately 62
percent of all women of reproductive age are currently using a
contraceptive method;
contraceptive services can serve as a gateway for women to
enter the health care system and obtain preventive medical
care;
"[t]he exemption sought by Hobby Lobby . . . would deny
legions of women who do not hold their employers' beliefs
access to contraceptive coverage that the ACA would otherwise
secure," as noted in Justice Ginsburg's dissent;
any decisions to use contraceptives should be made by a woman
in consultation with her health care providers and not her
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employer;
it is the goal of some to deprive women of their reproductive
rights by using the argument of religious freedom and ignoring
women's health, which results in the disparate treatment of
women and undermines individual choice;
California has always prioritized women's health care,
including passing the groundbreaking Women's Contraception
Equity Act in 1999, which requires employer-based health plans
that cover a variety of prescription drugs to also cover a
variety of prescription contraceptive methods; and
there is concern that corporations may attempt to misuse the
precedent set by Hobby Lobby to unduly restrict women's health
care options or seek religious exemptions from other generally
applicable laws.
This measure would declare that the Senate of the State of
California recognizes the critical importance of a continued
commitment to reproductive health care and access and urges the
U.S. Senate to reconsider and approve Senate Bill 2578, referred
to as the "Not My Boss's Business Act," which would prevent
employers from denying coverage of contraceptives regardless of
their religious views.
This measure would declare that the Senate of the State of
California reaffirms the decision of Roe v. Wade (1973) 410 U.S.
113, which acknowledges that reproductive choice is a
fundamental right that belongs to all women.
COMMENT
1. Stated need for the bill
According to the author, "SR 55 reaffirms that women are
entitled, as a matter of right, to control their bodies and,
without that right, they will never have control over their
lives. This resolution challenges the notion that bosses [or]
politicians . . . can take away women's rights and their most
fundamental and personal choices."
In support of SR 55, the American Congress of Obstetricians and
Gynecologists, District IX (ACOG) writes:
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California has consistently been on the forefront of
advocating for and protecting reproductive rights,
understanding the best medical care is when a patient and
physician have the ability to objectively make decisions. It
is bad medicine to have anyone else, be it the Legislature or
an employer, interfere with what would otherwise be the best
medical option the patient chooses.
United States Senate Bill 2578 specifically prevents religious
employers from denying coverage of contraceptives based on
their religious views. It is critically important for medical
care to be provided based on science and medical need, and a
denial of insurance coverage for many renders that care
inaccessible.
Similarly, NARAL-Pro Choice California writes in support:
This resolution would ensure access to the full range of
approved contraceptive measures for all insured individuals in
California and that any decision to use contraceptives would
be made by a woman in consultation with her health care
providers and not based on her employer's religious views.
NARAL Pro-Choice California believes that every woman has the
right to make her own individual decisions about her
reproductive health, including preventing unintended
pregnancies, bearing healthy children and choosing legal
abortion. We strongly feel that these choices are very
personal decisions, and individuals should be able to work
with their health care provider to choose a contraceptive
method that is best suited for them.
Also in support, the California Family Health Council adds that
"SR 55 highlights the benefits of contraception and brings
attention to the damaging consequences court cases and
anti-choice legislation can have for women."
2. Recent U.S. Supreme Court decision in Burwell v. Hobby
Lobby, Inc.
Earlier this year, the U.S. Supreme Court decided the case of
Burwell v. Hobby Lobby, Inc. (2014) 2014 U.S. LEXIS 4505, which
addressed the issue of whether the federal Religious Freedom
Restoration Act (RFRA) permits the U.S. Department of Health and
Human Services (HHS) to demand that three closely-held
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corporations provide health insurance coverage for methods of
contraception that violate the sincerely held religious beliefs
of the companies' owners. The Court held that it did not. This
measure seeks to reiterate the Senate's commitment to
reproductive health care and access, and to leave health care
decisions-including the choice among contraceptive methods-in
the hands of women by encouraging the U.S. Senate to reconsider
and pass recently defeated legislation that would prevent
employers from denying coverage of contraceptives regardless of
their religious views.
a. Hobby Lobby majority opinion
Decided just over a month ago, Hobby Lobby involved three
companies' religious objections to the provision of insurance
coverage for four methods of contraception-namely, two
emergency contraceptives (i.e. "morning after" pills) and two
types of intrauterine devices (IUDs), which may have the
effect of preventing an already fertilized egg from attaching
to the uterus (in contrast to other forms of contraceptives
that work by preventing the fertilization of an egg). Seeking
an accommodation similar to those provided to religious
organizations, the companies brought suit, arguing that
Patient Protection and Affordable Care Act's (ACA)
"contraceptive mandate" violated the owners' exercise of
religion under the First Amendment and under RFRA (though the
Court never reached the question of whether the mandate
violated the First Amendment, having decided at the outset
that it violated RFRA).
Under RFRA, federal law provides that "[g]overnment shall not
substantially burden a person's exercise of religion even if
the burden results from a rule of general applicability." (42
U.S.C. Sec. 2000bb-1(a).) If it does, the person is entitled
to an exemption from the rule unless the government
"demonstrates that the application of the burden to the person
- (1) is in furtherance of a compelling governmental interest;
and (2) is the least restrictive means of furthering that
compelling governmental interest." (42 U.S.C. Sec.
2000bb-1(b).) For RFRA purposes, as amended by the Religious
Land Use and Institutionalized Persons Act of 2000 (RLUIPA),
"exercise of religion" means "any exercise of religion,
whether or not compelled by, or central to a system of
religious belief" - which the Hobby Lobby majority interpreted
as clear indication from Congress that the term, for
RFRA-analysis, is to be separated from how it has been applied
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in First Amendment jurisprudence. This distinction proved key
because prior Supreme Court precedent made clear that
accommodations for religious beliefs or observances must not
significantly impinge upon the interests of third parties. As
a result, the Court found that "the plain terms of RFRA make
it perfectly clear that Congress did not discriminate . . .
against men and women who wish to run their businesses as
for-profit corporations in the manner required by their
religious beliefs," and held that the HHS regulations violate
RFRA by imposing on these companies the obligation to provide
health insurance coverage for these four contraception
methods. (Burwell v. Hobby Lobby, Inc. (2014) 2014 U.S. LEXIS
4505 at 13.)
Notably, in doing so, the Court specifically stated that "[w]e
do not hold . . . that for-profit corporations and other
commercial enterprises can 'opt out of any law (saving only
tax laws) they judge incompatible with their sincerely held
religious beliefs.' Nor do we hold, as the dissent implies,
that such corporations have free reign to take steps that
impose 'disadvantages . . . on others' or that require 'the
general public [to] pick up the tab.' And we certainly do not
hold or suggest that 'RFRA demands accommodation of a
for-profit corporation's religious beliefs no matter the
impact that accommodation may have on . . . thousands of women
employed by Hobby Lobby.' The effect of the HHS-created
accommodations on the women employed by Hobby Lobby and other
companies involved in these cases would be precisely zero.
Under that accommodation, these women would still be entitled
to all FDA-approved contraceptives without cost sharing."
(Id. at 15-16.) In other words, the majority believed a less
restrictive means was available by which the government could
achieve the same compelling interest in providing access to
all contraceptives, without infringing upon the "free exercise
of religion" of these owners.
b. Justice Ginsburg dissent
In contrast to the majority's characterization of the limits
of its opinion and the impact upon women, Justice Ruth Bader
Ginsburg began her dissenting opinion, writing that:
In a decision of startling breadth, the Court holds that
commercial enterprises, including corporations, along with
partnerships and sole proprietorships, can opt out of any
law (saving only tax laws) they judge incompatible with
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their sincerely held religious beliefs. . . . The Court
does not pretend that the First Amendment's Free Exercise
Clause demands religion-based accommodations so extreme,
for our decisions leave no doubt on that score. [ ]
Instead, the Court holds that Congress, in [RFRA] dictated
the extraordinary religious-based exemptions today's
decision endorses. In the Court's view, RFRA demands
accommodation of a for-profit corporation's religious
beliefs no matter the impact that accommodation may have on
third parties who do not share the corporation owners'
religious faith-in these cases, thousands of women employed
by Hobby Lobby and Conestoga or dependents of persons those
corporations employ. . . ." (Id. at 97-98.)
Justice Ginsburg went on to note that "'[t]he ability of women
to participate equally in the economic and social life of the
Nation has been facilitated by their ability to control their
reproductive lives.' . . . Congress acted on that
understanding when, as part of a nationwide insurance program
intended to be comprehensive, it called for coverage of
preventive care responsive to women's needs. Carrying out
Congress' direction, the [HHS], in consultation with public
health experts, promulgated regulations requiring group health
plans to cover all forms of contraception approved by the
[FDA]." (Id. at 100-101, internal citation omitted.) Justice
Ginsburg further argued that the genesis of that coverage in
Congress should inform the Court's resolution of the case, as
Congress rejected a countermovement to the "Women's Health
Amendment" called the "conscience amendment" which would have
enabled any employer or insurance provider to deny coverage
based on its asserted religious beliefs or moral convictions.
"Rejecting the 'conscience amendment,' Congress left health
care decisions-including the choice among contraceptive
methods-in the hands of women, with the aid of their health
care providers." (Id. at 101, 105.)
In the dissent's opinion, the exemption sought by these
companies "would override significant interests of the
corporations' employees and covered dependents. It would deny
legions of women who do not hold their employers' beliefs
access to contraceptive coverage that the ACA would otherwise
secure. . . ." Writing that the Court has never previously
exempted a religious objector from the operation of a neutral,
generally applicable law in the face of a detrimental effect
of that requested exemption upon the rights of third parties,
Justice Ginsburg summarized that in free exercise claims, just
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as with free speech claims, "'[y]our right to swing your arms
ends just where the other man's nose begins.'" (Id. at
108-109, internal citation omitted.) Moreover, the dissent
fundamentally disagreed with the majority over whether
for-profit corporations rank among persons who exercise
religion, writing that "[u]ntil this litigation, no decision
of this Court recognized a for-profit corporation's
qualification for a religious exemption from a generally
applicable law, whether under the Free Exercise Clause or
RFRA." (Id. at 118.) Nonetheless, as a result of the Hobby
Lobby decision, it is foreseeable that other for-profit
corporations will begin to raise religious objections to
providing access to all FDA-approved contraceptives, and
potentially raise similar objections to complying with other
generally applicable laws such as vaccines, or paying the
minimum wage. (See id. at 144.)
While California women arguably remain protected under this
state's Women's Contraception Equity Act (as the Hobby Lobby
decision was based upon a federal law restricting the federal
government's ability to act), this measure seeks to reaffirm
this State Senate's commitment to reproductive health care and
access for women and would call for the U.S. Senate to act, by
reconsidering and approving legislation that would reverse
Hobby Lobby and ensure that all women across the nation enjoy
the same rights as the women in California, regardless of
their employer's personal religious views.
3. Measure reaffirms support for Roe v. Wade
In 1973, the U.S. Supreme Court held in Roe v. Wade, (1973) 410
U.S. 113 that the constitutional right to privacy extends to a
woman's decision whether to terminate a pregnancy, while
acknowledging that some state regulation was permissible. The
plaintiff in the case was "Jane Roe," an unmarried woman who
wanted to end her pregnancy under safe and clinical conditions
but was unable to get a "legal" abortion in Texas because her
life was not threatened by the continuation of the pregnancy.
Unable to afford travel to another state to obtain an abortion,
she challenged the statute making it a crime to perform an
abortion unless a woman's life was at stake. She also claimed
that the Texas law abridged her right of personal privacy. The
court struck down the Texas law, finding for the first time that
the constitutional right to privacy is "broad enough to
encompass a woman's decision whether or not to terminate her
pregnancy." At the same time, the high court also defined two
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compelling state interests that would satisfy restrictions on a
woman's right to choose to terminate a pregnancy: 1) states may
regulate the abortion procedure after the first trimester of
pregnancy in ways necessary to promote a woman's health; and 2)
after the point of fetal viability, a state may, to protect the
potential life of the fetus, prohibit abortions that are not
necessary to preserve a woman's life or health.
Roe v. Wade has been one of the most debated Supreme Court
decisions, and its application and continued validity have
frequently been challenged in the courts. For example, in
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
505 U.S. 833, the Court reaffirmed Roe v. Wade, yet also
permitted the state to impose restrictions on abortion as long
as those restrictions do not "unduly burden" a woman's right to
choose to terminate a pregnancy. That being said, this
Legislature has on numerous occasions adopted resolutions urging
the U.S. Congress and the President to stand firm in their
resolve to uphold the intent and substance of the now 41-year
old decision. Most recently, this Senate approved SR 10
(Jackson, 2013), which memorialized that on the 40th anniversary
of Roe v. Wade, the California State Senate recognizes the
critical importance of continued access to safe and legal
abortion, and urges the U.S. Congress and the President to
protect and uphold the intent and substance of that decision.
This measure, consistent with SR 10 and other similar
resolutions, would declare that the California State Senate
reaffirms the decision of Roe v. Wade, which acknowledges that
reproductive choice is a fundamental right that belongs to all
women.
4. Opposition concerns
In opposition to SR 55, the California Conference of Bishops
writes:
[ . . . ] SB 2578 [(which this resolution urges the U.S.
Senate to reconsider and approve)] would override the
Religious Freedom Restoration Act (RFRA) and "any other
provision of Federal law" that is perceived to get in the way
of whatever particular special concern to which an individual
or group believes they are entitled. In this case, crippling
penalties could be imposed on businesses, sponsors and issuers
of insurance who provide generous health care coverage to
their employees, but object in conscience to a specific "item
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or service." In the future, this could include RU-486 [i.e.
Mifepristone, a medication that can end an early pregnancy] or
elective surgical abortions. As proposed, employees
themselves, and women and men buying individual coverage also
would have no right to object.
The California Conference of Bishops also argues in opposition
that SR 55 would result in a public statement that RFRA "should
be amended whenever the needs of individuals or groups are
publicly expressed or 'politically correct.'"
5. Author's amendments
The following clarifying and technical amendments are offered by
the author:
Author's amendments:
1. On page 1, in line 19, strike "woman" and insert "women"
2. On page 2, in line 12 and line 28, strike "Ginsberg" and
insert "Ginsburg"
3. On page 2, in lines 32-33, strike "state legislatures"
and insert "State Legislatures"
4. On page 3, in line 9, after "variety" insert "of"
5. On page 3, in line 21, strike "U.S. Senate to reconsider
and approve" and insert "U.S. Congress to pass and the
President of the United States to sign"
6. On page 3, in line 22, before "referred to as the Not My
Boss's Business Act" and insert "commonly"
7. On page 3, in line 25, after "the Senate of the State of
California reaffirms" insert "its support of"
Support : American Association of University Women - California;
American Congress of Obstetricians and Gynecologists - District
IX; California Family Health Council; California Primary Care
Association; NARAL Pro-Choice America; Planned Parenthood
Affiliates of California
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Opposition : California Catholic Conference of Bishops
HISTORY
Source : Author
Related Pending Legislation : SB 1053 (Mitchell, 2014) would
require a health care service plan contract or health insurance
policy issued, amended, or renewed on or after January 1, 2016,
to provide coverage for women for all prescribed and
FDA-approved female contraceptive drugs, devices, and products,
as well as voluntary sterilization procedures, contraceptive
education and counseling, and related follow-up services without
any cost-sharing requirements or other restrictions or delays
with respect to this coverage, except as specified. SB 1053
bill would retain the provision authorizing a religious employer
to request a contract or policy without coverage of FDA-approved
contraceptive methods that are contrary to the employer's
religious tenets.
Prior Legislation :
SR 10 (Jackson, 2013) memorialized that on the 40th anniversary
of the Supreme Court decision of Roe v. Wade (1973) 410 U.S.
113, the California State Senate recognizes the critical
importance of continued access to safe and legal abortion, and
urges Congress and the President to protect and uphold the
intent and substance of that decision. SR 10 also made various
statements regarding the effect of Roe v. Wade on women's
ability to exercise their full rights under federal and state
law.
SJR 19 (Alquist, Figueroa, Kehoe, Stats. 2005) was a similar
resolution to SR 10; it was referred to this Committee but not
set for hearing.
AJR 3 (Cohn, Karnett, Res. Ch. 83, Stats. 2005) was almost
identical to SJR 19.
AJR 57 (Jackson, Res. Ch. 50, Stats. 2004) was almost identical
to AJR 3.
AJR 2 (Jackson, Res. Ch. 63, Stats. 2003) was almost identical
to AJR 57.
SJR 3 (Karnette, Res. Ch. 112, Stats. 2001) was a similar
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resolution to AJR 2.
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