Kojo and Tom Sherwood chat with D.C. Council Member Elissa Silverman (I-At Large)
In June, the Supreme Court ruled that requirements in the Affordable Care act for employers to provide insurance coverage for contraception violated a federal law protecting religious freedom. The decision triggered strong responses, particularly from those concerned about women’s health and reproductive rights. Kojo chats with U.S. Sen. Tim Kaine (D-Va.) about a legislative response he’s supporting in the wake of the court’s action.
- Tim Kaine Member, U.S. Senate (D-Va.); Former Governor of Virginia; Former Chairman, Democratic National Committee
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, SCOTUS revised, how Supreme Court opinions can be edited after they're announced and why it can sometimes alter the letter of the law. But, first, members of Congress move to overturn the court's recent ruling on contraception. Late last month, the court ruled that the Affordable Care Act's requirement that family-owned corporations pay for insurance coverage for contraception violated a federal law protecting religious freedom.
MR. KOJO NNAMDIThe decision, drawing immediate criticism from those who say such requirements are necessary to protect the health of women and their reproductive rights, and some members of Congress are already working to legislate a solution to restore such insurance coverage requirements. Joining us to explore where the debate on Capitol Hill is headed is Tim Kaine. He's a member of the United States Senate. He's a Democrat from Virginia. He joins us by telephone. Sen. Kaine, welcome. Thank you for joining us.
SEN. TIM KAINEKojo, good to be back. Thank you.
NNAMDIBefore we get into the fix that you and your colleagues in the Senate are offering to the Supreme Court's ruling, you've said that the decision the court made in the first place is not the way the court is supposed to work. What did you mean by that?
KAINEKojo, I was very troubled by the decision. I practiced law for 17 years and did a good bit of constitutional law. And, of course, lawyers have different opinions about a lot of things. But when I read the opinion, what really struck me is, wow, this really isn't an opinion about religious rights. It's an opinion that is just part of an anti-contraception movement. And I'll tell you why I thought that. The majority felt a little bit, I think, self-conscious in their reasoning. And they said, don't worry, we know that certain religions oppose transfusions, and certain religions oppose vaccinations. But this case wouldn't really jeopardize coverage for those services.
KAINEBut sincerely-held religious beliefs are sincerely-held religious beliefs. And the fact that the court was kind of quick to say, well, you don't need to worry about these other kinds of services, this is just a case that really is about contraception, suggested to me that the case really wasn't about sincerely-held religious beliefs. Instead, it was just part of an anti-contraception move. So that was one thing that troubled me.
KAINEThe second thing that troubled me was the notion of corporations having the ability to express religious rights is a little bit problematic because the reason we allow corporations to be created is so that a fictional entity, separate and apart from the owners, can operate in ways that, if it's liable, the owners' personal assets cannot be touched.
KAINEOwners set up corporations to protect their own personal assets from liability. So if the whole reason for creating the corporation is to create this entity that distances itself from the individual -- and that's a significant benefit, and an important one to the individual -- why should the individual then say, yeah, but my religious views nevertheless should be part of this fictional entity, not my pocketbook, not my assets, but my religious views should be part of it. So I found those two aspects of the decision quite troubling.
NNAMDI800-433-8850 is our number if you'd like to join the conversation, have questions or comments for Sen. Tim Kaine. He's a Democrat from Virginia. He joins us by telephone. Sen. Kaine, what would you say to those people who say, well, contraception is really different from any other kind of health treatment because it involves a decision about when life begins and no other form of healthcare involves that decision?
KAINEKojo, I understand that that argument is made, and, look, I think people should be able to make that argument. If you as an individual, a church, and even a company, want to say, I'm against contraception, and I encourage you not to use it, you can take out a newspaper ad. You can preach on the corner of the street. You can do all kinds of things to try to persuade people to not to use contraception. But to deny women access to contraception, even those who are of a different religion or have a different point of view, I think, is the wrong thing to do in a pluralistic society like ours.
KAINEAnd, secondarily, while the owners of this company might say, contraception is different than anything else, that's their religious view. Remember there are other religions that just as sincerely maintain that vaccinations are wrong or that certain kinds of surgical procedures are wrong, or that transfusions are wrong. And they are just as sincere. And they say that as a core part of their religious belief. I don't think the court should be in the business of singling out one sincerely-held religious belief and say, an employer can deny coverage for this sincerely-held religious belief but not for others. And that...
NNAMDIWell, as you point...
KAINEAnd that's why I viewed this ultimately as a decision less about religious freedom and more about sort of a -- what I view as a concerted effort that is kind of broad-based to deny women access to contraception when we know that access -- I think it has important health benefits for women, not only in the planning of pregnancies, but many women are prescribed contraceptives to deal with other health conditions, some dealing with their reproductive systems and some not dealing with that all.
KAINEThe hormones have other positive benefits. But contraception also has a social benefit. Teen pregnancy has been going down for 20 years. The number of abortions has gone down. And most attribute those laudable trends, at least significantly, to availability of contraception.
NNAMDIYou mention that the justices in the majority say they tailored this ruling to be narrow in scope. Supporters of the ruling say it is limited. People who disagree with it say it could set a very significant and sweeping precedent. How do you see it?
KAINEWell, it's interesting. There's a -- you know, I would encourage folks to read the opinion. Even non-lawyers read it 'cause it's a great back-and-forth dialogue between the majority opinion written by Justice Alito and the dissenting opinion written by Justice Ginsburg. And Justice Ginsburg says, well, where does this stop? If you say corporations have religious rights, what about transfusions? What about vaccinations? What about a whole series of things that certain religions sincerely believe would violate their precepts? But the majority opinion, they obviously seemed worried about that, too, so they said, well, no, you wouldn't need to worry about that.
KAINEThat would be a different kind of a case. And they try to assure people that the ruling is very narrow. But that raises its own set of issues. If you try to dismiss these other religious beliefs as somehow not worthy of the same kind of solicitude, then again it gets back to what probably most surprised me about the case, that it was more of an attack on contraception than it was of indication of religious rights.
NNAMDIWhat does the so-called fix that you and other members of the Senate are offering change?
KAINEWell, Kojo, it's important to note this is a case where the Supreme Court was not ruling based on the First Amendment in the Constitution. Instead, they took the one congressional act, the Affordable Care Act, and they said a piece of the Affordable Care Act, the contraception mandate as part of preventive care, violates another congressional statute, the Religious Freedom Restoration Act. Now, a normal rule of construction, when a court is looking at two statutes, they are supposed to try to construe the statutes as harmonious on the theory that Congress knows what their statutes are.
KAINEAnd if they pass a statute after they pass a first one, they think they're harmonious. So normally a court would find a way to construe them harmoniously. In this case, they said, no, clearly this contraception mandate violates what the Religious Freedom Act said. So we're just going back in and clarifying. No, we understand what the two statutes say. There is nothing about the Affordable Care Act that is -- that lacks harmony with religious freedom.
KAINEYou know, individuals and even companies certainly have their religious freedom to encourage others if they feel they want to encourage others not to use contraception. They can. But it's just going beyond that to deny or limit access. You know, women will make their own decisions about whether or not to use contraception, and they can rely on the encouragement of their boss, their pastor, their conscience, their physician, whoever they want. But what we're clarifying is that RFRA does not allow individuals or others to reduce access to contraception for women.
NNAMDIWhat are your expectations for how this legislation will move in your chamber, as well as in the House where Republicans are in the majority?
KAINEWell, let me say -- about the House, what I have concluded from my short time in the Senate is that if matters pass in the Senate that have some significant bipartisan support, they have a chance in the House. If they pass with very little bipartisan support, as a practical matter, they usually don't have much of a chance in the House. So the only way that I can, you know, look at the House passage possibility is to try to persuade my colleagues here in the Senate...
NNAMDIYou're going to have to persuade at least a few of your colleagues in the Senate because you're going to need a few Republicans to vote even to end debate on this issue to stop it from being filibustered.
KAINEAbsolutely. So the way we break the possibility of a filibuster is to get 60 votes on cloture to move toward consideration of the bill. And once we do that, we can pass a bill with 51 votes. But we're going to have to get up over 60 votes...
NNAMDIWhat realistically are the chances of that happening?
KAINEWell, it is -- right now, I would say it's an uphill battle, but it's not a lost cause because a number of Republicans have been holding press conferences, proposing alternatives. I think there was a press conference this morning where Republicans proposed an alternative. The fact that they are proposing an alternative to the Murray-Udall Bill tells me they realize that a sweeping ruling against contraception access is actually poor policy and probably also poor politics.
KAINESo I think they recognize that the overwhelming majority of Americans feel like whatever the position of an employer on contraception use, women ultimately should be able to make their own healthcare decision. So the fact that they're looking for alternatives and proposing alternatives suggests to me that when we get this up on the floor, we may well get some Republican votes. But we should know that soon. I think we're scheduled to have our first vote on it later today.
NNAMDIHere's Jim in Bethesda, Md. Jim, you're on the air. Go ahead, please.
JIMOh, it's wonderful listening to both of you.
JIMI'm -- hey, how you doing, Senator?
JIMI'm 70 years old. I think of myself as 40, but I'm 70. Everything Sen. Kaine has said is dead on the money. I admire his patience. See, I don't think it's a matter of opinion. It's a matter of intellectual honesty. There are some Republicans, even though -- I mean, even though -- I forget his name now, he's dead -- that can still think correctly. It's simply a matter of thinking correctly. Once you have the Constitution that we have, which gives us freedom of -- separation of church and state, when a law becomes a law, sure, you can disagree. But you have to follow it. And...
JIM...unless it's found to be unconstitutional on the correct basis.
NNAMDIWe're running out of time very quickly, Jim. But thank you very much for your call.
JIMVery, very -- OK.
NNAMDII wanted to give an opportunity very quickly for a differing opinion from Katherine in Alexandria, Va. Katherine, you're on the air. You have about one minute.
KATHERINEOK. Hi. I just wanted to ask a quick question, specifically about religious freedoms. How come Hobby Lobby was able to essentially impose their own religious beliefs on people of differing religions, such as, like, you know, as an atheist, you know, I don't believe, like, in this whole thing, so how is that Hobby Lobby...
NNAMDIOK. Sen. Kaine.
KAINEYeah. No. I -- look, I think Katherine raises a good point. The opinion raises a whole lot of questions. And one of them is that. If we allow a corporation to assert religious rights, which I think is a real question about whether we should -- I'm puzzled by the court's ruling about that. But, you know, folks who work with Hobby Lobby have all kinds of different religious positions. And the whole point of the Religious Freedom Act was to protect individuals' religious rights. So, what, we're going to now allow a corporation to dictate religious policy to employees who have different points of view?
KAINEThat's just one of the troubling aspects of the case. But, Kojo, I kind of -- my bottom line on it is the more you think about these questions, the more the Hobby Lobby case seems to me -- it is an attack on contraception access more than a religious freedom case. And contraception access is good for individuals and it had had positive effects on society, reduction in teen pregnancy, reduction in abortion rates. It seems to me those are laudable trends and we shouldn't be -- the anti-contraception sort of ideology that animates the case is troubling.
NNAMDIMr. Senator, I know you have to vote, you have to go. But Catherine wasn't the call I wanted. Can you give us one more minute?
KAINEYeah, sure. Yes.
NNAMDIFor Peggy, in Silver Spring, Md. Peggy, you have that minute.
PEGGYOkay. I'm a pro-life woman. I believe that Hobby Lobby outlawed four, four contraceptives out of 20. And they were the four that take the life of a child, a baby. Now, for Tim Kaine -- shame on Tim Kaine, because people do have consciences. The blood transfusion, vaccination, they don't take the life of a child.
NNAMDIOkay. Allow me to have Senator Kaine respond.
KAINEYeah, but your caller is asserting her strong religious belief. And of course she should follow her religious belief. But other religions have different beliefs about transfusions or vaccinations. And where do -- where do we stop? I think an employer like Hobby Lobby, let them encourage, let your caller encourage others. If they think taking contraception is a bad thing they should urge others not to take it. But they shouldn't be dictating policy to deny access for people to make their own decisions in accord with their own religious and moral viewpoints.
NNAMDITim Kaine is a member of the United States Senate. He's a Democrat from Virginia. Senator Kaine, thank you for joining us.
KAINEOkay. Thanks so much.
NNAMDIWe're going to take a short break. When we come back, SCOTUS revised. How Supreme Court opinions can be edited after they're announced and why it can sometimes alter the letter of the law. We'll be talking with Adam Liptak, Supreme Court correspondent for the New York Times. You can start calling now, 800-433-8850. I'm Kojo Nnamdi.
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