In it, but not of it. TPM DC

Senate Democrats Plot Legislative Response To Birth Control Ruling

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AP Photo / J. Scott Applewhite

A Democratic Senate aide said Murray will work with stakeholders and Senate offices through the July 4 holiday weekend to find a legislative path forward to "ensure employers who provide health coverage cannot deny their employees specific benefits" required by federal law. The aide said a "vast array of the Democratic caucus" has expressed interest in joining the effort.

The narrow response would specifically address the contraception coverage gap created by the Supreme Court by finding a way to ensure access for the thousands of women whose employer-based insurance will no longer cover certain contraceptive services like the morning-after pill and intrauterine devices.

The broad response would likely amend the 1993 Religious Freedom Restoration Act, or RFRA, the federal law the Supreme Court relied on to rule against the Obamacare-based birth control mandate. RFRA says any law that substantially burdens a person's exercise of religion must be narrowly tailored to meet a compelling governmental interest.

Democrats may look to a new proposal by the Center For American Progress, a prominent liberal think tank, to clarify that a religious liberty shield from neutral laws cannot be used if it harms others. CAP suggests this language: "This section [referring to the existing statute] does not authorize exemptions that discriminate against, impose costs on, or otherwise harm others, including those who may belong to other religions and/or adhere to other beliefs."

Discussions are ongoing but leaders are still weighing the scope of the legislation and so they haven't settled on the specifics yet, the sources said. Some favor a narrower approach, some favor a broader approach. Democrats who have criticized the Hobby Lobby ruling include Sen. Mark Begich (AK), Sen. Barbara Boxer (CA), Senate Majority Leader Harry Reid (NV) and Senate Majority Whip Dick Durbin (IL).

The benefit of a narrow response is it would keep the heat on Republicans for their opposition to the contraception mandate, which Democrats are eager to turn into a 2014 campaign issue. Democrats, particularly vulnerable members in red states, would rather talk about GOP attitudes toward women's health rather than religious liberty more generally.

The advantage of the broad response is that it could snuff out additional exemptions that the courts might grant for-profit employers under RFRA. Justice Ruth Bader Ginsburg, in her blistering dissent, warned that the Supreme Court had "ventured into a minefield" by letting corporations opt out of laws they object to. Tweaking RFRA would not only reverse the Hobby Lobby ruling but snuff out further lawsuits involving contraception or other health services that religious employers may want to opt out of.

The legislative proposal will elevate the debate in Congress and sharpen divisions between the two parties ahead of the November congressional elections. Democrats have been on an aggressive fundraising spree since the ruling and are salivating at the prospect of attacking Republicans as anti-women neanderthals in the coming weeks and months. Ultimately a legislative fix is unlikely to pass Congress because Republicans don't intend to allow it. It will likely be up to President Barack Obama to seek administrative fixes to close the birth control coverage gap.