A.G. Schneiderman Proposes Bill To Blunt The Effect Of Supreme Court’s Hobby Lobby Decision In New York

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Yesterday, Attorney General Eric Schneiderman and Yonkers Senator Andrea Stewart-Cousins announced that they would propose legislation in Albany that would help to shield New York women from the effect of the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby. That decision limited the scope of the contraceptive mandate under the Patient Protection and Affordable Care Act (ACA), with the result that some women in New York State may lose insurance coverage for prescription contraception. The Reproductive Rights Disclosure Act would require employers both to give current employees 90 days’ notice before changing contraceptive coverage and to notify prospective employees of any contraceptive coverage they offer their employees.

“No woman should have her personal healthcare decisions dictated by the religious beliefs of her boss,” Attorney General Schneiderman said. “As a senator, I fought for a strong law to protect women from discrimination in healthcare coverage because we must have one set of rules for everyone. In the wake of the Supreme Court’s deeply misguided Hobby Lobby decision, we need to go further to empower the women of New York State with the information they need to make their own healthcare choices. That is what the Reproductive Rights Disclosure Act would accomplish.”

Because Hobby Lobby allows a limited category of companies to drop contraceptive coverage from their employee insurance plans, Attorney General Schneiderman’s Reproductive Rights Disclosure Act would create one notice standard for all employers, regardless of the type of company. The Act would require employers to give 90 days’ written notice to employees, as well as the New York State Department of Labor, the Department of Financial Services, and the State Attorney General’s Office. It would also require employers to inform prospective employees of the scope of contraceptive coverage, including by posting on the company website limitations on contraception coverage. The Act also provides for a civil penalty of up to $5,000 for each violation of the new notice provisions.

The Affordable Care Act requires most employer-provided insurance plans to cover preventive care and screenings for women without any cost sharing. The U.S. Department of Health and Human Services (HHS) issued regulations specifying that most employers must cover 20 contraceptive methods approved by the Food and Drug Administration.

In the case of Burwell v. Hobby Lobby, the nationwide retailer Hobby Lobby and its owners challenged the ACA’s mandate to provide health insurance coverage for certain contraception on the grounds that it violated the Religious Freedom Restoration Act of 1993 (RFRA). The RFRA prohibits the federal government from taking an action that substantially burdens the exercise of religion unless it constitutes the least restrictive means of serving a compelling government interest. The Court found that RFRA’s protections applied to closely held corporations, and not just individuals espousing sincerely held religious beliefs. It further found the mandate and penalties for noncompliance were substantial burdens on the exercise of religion. The decision assumed that protecting women’s health was a compelling government interest, but found the ACA’s provisions were not the least restrictive means of fulfilling that interest.

Notably, the Hobby Lobby decision was not reached under the First Amendment’s Free Exercise Clause, but solely under RFRA. That means that the effect of the decision is limited to actions taken by federal agencies like HHS. Hobby Lobby does not interfere with state laws. New York’s Women’s Health and Wellness Act (WHWA) still provides strong protections for contraceptive coverage, but the law does not reach all women in New York. For these women, the Hobby Lobby decision threatens their ability to make their own healthcare choices.

“We are united in our call to allow women to make decisions about their own reproductive health, without corporate interference,” said Democratic Conference Leader and State Senator Andrea Stewart-Cousins. “Due to the Supreme Court decision in the Hobby Lobby case, New York State must take decisive action to protect women’s rights and health. I applaud Attorney General Schneiderman for his leadership on addressing this issue, and look forward to working with him, and my colleagues in State government, to ensure all New Yorkers have access to the quality healthcare coverage they deserve.”

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