Jul 15 2014

THE WALL STREET JOURNAL: The Hobby Lobby Decision and Its Distortions

Nothing in the Supreme Court's recent ruling denies women access to birth control.

In the days since the Supreme Court's June 30 Burwell v. Hobby Lobby decision, we have been troubled by those who seem eager to misrepresent both the facts of the case and the impact of its ruling on women—all to divide Americans and score political points in a tough election year.

The biggest distortion: the #NotMyBossBusiness campaign on Twitter, which falsely suggests that under the ruling employers can deny their employees access to birth control.

That's flat-out false. Nothing in the Hobby Lobby ruling stops a woman from getting or filling a prescription for any form of contraception. Those who distort the court's decision insist that one cannot support religious liberty and also support access to safe, affordable birth control. But these are principles that we, and millions of others, support. Americans believe strongly that we should be able to practice our religion without undue interference from the government. It's a fundamental conviction that goes to the very core of our character—and dates back to the founding of our nation. The Supreme Court's decision in the Hobby Lobby case, which protects rights of conscience, reaffirmed our centuries-old tradition of religious liberty.

Contrary to the misleading rhetoric, the Hobby Lobby ruling does not take away women's access to birth control. No employee is prohibited from purchasing any Food and Drug Administration approved drug or device, and contraception remains readily available and accessible for all women nationwide. According to a Kaiser Family Foundation poll, prior to ObamaCare over 85% of large businesses already offered contraceptive coverage to their employees. And the ObamaCare mandate under review in the case doesn't even apply to businesses with fewer than 50 employees. For lower-income women, there are five programs at the U.S. Department of Health and Human Services that help ensure access to contraception for women, including Medicaid.

The court's decision applies to businesses whose owners have genuine religious convictions. In the Hobby Lobby case, the company's owners—the Green family—offered health-care plans that provide coverage for 16 of the 20 FDA-approved contraceptive drugs and devices, including birth-control pills, required under the Affordable Care Act.

The Greens only had moral objections to the remaining four methods, which they consider to be abortifacients. The family felt strongly that paying for insurance that includes these methods would compromise their deeply held religious belief that life begins at conception.

In its narrow ruling, the court agreed, basing its decision on the Religious Freedom Restoration Act of 1993, which was introduced in the Senate by the late Sen. Edward Kennedy (D., Mass.) and in the House by then-Congressman Charles Schumer (D., N.Y.), and supported by over a dozen current Democratic senators, Vice President Joe Biden, and Secretary of State John Kerry.

Kennedy and Mr. Schumer sponsored this bipartisan law in the aftermath of the Supreme Court's 1990 decision in Employment Division v. Smith, which held that "generally applicable laws" that have nothing to do with religion could effectively prevent Americans from fully exercising their religious rights.

The Religious Freedom Restoration Act passed the Democratic-controlled House by voice vote and was approved by the Democratic-controlled Senate in an overwhelming vote of 97 to 3.

When President Clinton signed the bill, he said: "What this law basically says is that the government should be held to a very high level of proof before it interferes with someone's free exercise of religion."

In the Hobby Lobby decision, the Supreme Court ruled that the government failed to make that case.

With misinformation now swirling, it's important to understand what the court's decision doesn't mean.

The court's majority opinion explicitly states that the ruling does not "provide a shield for employers who might cloak illegal discrimination as a religious practice." Additionally, the court said that "our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer's religious beliefs"—meaning, you must show a legitimate religious objection.

While some Americans may disagree with the Green family's views, nearly all Americans believe that religious freedom is a fundamental right that must not be abridged. When President Clinton signed the Religious Freedom Restoration Act, he said: "Our laws and institutions should not impede or hinder, but rather should protect and preserve fundamental religious liberties."

Congressional Democrats used to share that view. What's changed? We can preserve access to contraceptives without trampling on Americans' religious freedom.

Ms. Ayotte is a Republican senator from New Hampshire. Ms. Fischer is a Republican senator from Nebraska.