AG Schneiderman Proposes Bill to Blunt the Effect of Supreme Court's Hobby Lobby Decision in New York

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Schneiderman: Women Should Be Empowered With Information To Make Their Personal Healthcare Choices

White Plains, NY - July 17, 2014 - Attorney General Eric T. Schneiderman and State Senate Democratic Conference Leader Andrea Stewart-Cousins today 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. A broad coalition of advocates and legislators, including Assembly Member Shelley Mayer, attended the announcement to express their support for the legislation, as well as representatives from WCLA - Choice Matters, NARAL Pro-Choice New York, Planned Parenthood, the National Organization for Women of New York City, the National Organization for Women of New York State, and the New York Civil Liberties Union.
 
“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.”
 
Assembly Member Shelley Mayer said, “In the wake of the Supreme Court's Hobby Lobby decision, with which I strongly disagree, I believe New York State must make efforts to inform employees about their health care coverage - and what may no longer be covered by some insurance policies. I am committed to working with Attorney General Schneiderman and my colleagues to enact legislation in New York State that informs both current and prospective employees about the details of their insurance coverage, so they can make informed health care choices for themselves.”
 
Congresswoman Nita Lowey (D-Westchester/Rockland) said, “The Supreme Court’s Hobby Lobby decision marked a shocking step backwards for women’s health. For-profit employers should not be legally allowed to prevent a female employee from making her own health decisions. We need to correct this injustice for the millions of American women who will now be at risk of having to pay out of pocket for basic contraception that helps prevent unwanted pregnancy, disease, and various types of cancer. That’s why I co-sponsored the Protect Women’s Health from Corporate Interference Act of 2014 to provide free contraception in compliance with the ruling, and I applaud Attorney General Schneiderman’s measure that would, given the ruling, provide women advance notice so they can plan ahead. I will continue to do all I can to ensure women’s health choices are where they belong -- between a woman and her doctor.”
 
State Senator Liz Krueger said, “Hobby Lobby was and is a wrong decision by the Supreme Court, and I believe that it won't last -- sooner or later, it won't be the law of the land. But in the meantime, if businesses are going to claim a special belief-based exemption to deny their employees access to basic care and services that other law-abiding employers must and do offer, then at a bare minimum every employer must be required to honestly explain to employees how their healthcare plan falls short of the national standard set by the Affordable Care Act. This is a commonsense bill and we must pass it.”
 
Assembly Member Amy Paulin said, “Women have a right to know if their employer intends to change coverage of a significant aspect of their health insurance – with enough notice to make important decisions about their reproductive  health care.  A prospective employee should be armed with the same information.  This is an issue affecting a woman’s pocket book and the ability to make important decisions about her own health.”  
 
Assembly Member Ellen Jaffee said, “I am deeply disappointed with the ill-advised majority decision of the Supreme Court regarding Hobby Lobby. The majority opinion has entered dangerous territory allowing corporations to force their religious beliefs on their employees. It was because of cases like Hobby Lobby that Senator Krueger and I introduced the Boss Bill. Employers should not have the right to make healthcare decisions for their employees. Denying millions of women access to affordable birth control is denying them fair and equal access to basic preventive health care. Giving employees a 90 day notification if and when their contraceptive coverage changes is the least we can do to protect the millions of New York women. I want to thank Attorney General Schneiderman, Assemblymember Mayer and Senator Stewart-Cousins for introducing this legislation and I will do everything I can to ensure its passage.”
 
Assembly Member David Buchwald said, “All employees should have the right to know in advance what reproductive health care decisions are being made for them by their employer. Attorney General Schneiderman is demonstrating leadership on this crucial issue, and I stand ready to work with my colleagues in the State Legislature so that the consequences of the Hobby Lobby decision are less harmful here in New York.”
 
Catherine Lederer-Plaskett, President of WCLA - Choice Matters said, “The Supreme Court’s outrageous Hobby Lobby decision made it clear to me that New York women need to know whether or not their employer or potential employer will provide contraceptive coverage. I’m glad WCLA - Choice Matters was able to work with Attorney General Schneiderman to propose legislation that would incorporate transparency into our employment law. We are incredibly proud that this idea is now the Reproductive Rights Disclosure Act.”
 
Andrea Miller, President of NARAL Pro-Choice New York said, “As evidenced by the recent Hobby Lobby ruling, this nation’s highest court believes that an employer’s beliefs supersede a woman’s ability to make her own reproductive health care decisions. NARAL Pro-Choice New York is tremendously appreciative of Attorney General Eric Schneiderman’s swift action in the wake of that shocking and disturbing decision to ensure transparency in employers’ health insurance practices. Thanks to the Attorney General’s proposed legislation, employers who impose their narrow beliefs on employees’ health care will not be able to hide in the shadows. This bill is a testament to the importance of taking proactive measures to improve the health, safety and equality of New York women at all levels of government.”
 
Zenaida Mendez, President of NOW New York State said, “The Supreme Court’s atrocious Hobby Lobby decision is an attack on women, and our right to make our own healthcare choices. NOW New York State is grateful to Attorney General Schneiderman to taking action to protect women from losing their contraceptive coverage without notice, and to ensure that women know when they apply for a job whether the prospective employer provides contraceptive cover.”  
 
“In the wake of the Supreme Court decision that gives employers the right to refuse birth control coverage to employees, this measure is an important step in holding companies accountable to their workforce by making it impossible to hide their stance and access to contraceptive care,” said Sonia Ossorio, President of the National Organization for Women, New York City. “ It’s leaders like Eric Schneiderman who are leading the response to roll backs in women’s fundamental right to full access to reproductive healthcare.”
 
“Women have a right to know if they’re going to have access to basic health care when they take a job or not,” said New York Civil Liberties Union Executive Director Donna Lieberman. “That’s why it’s important for New York to stand for women and pass this important legislation. We applaud Attorney General Schneiderman for taking steps to prevent employers like Hobby Lobby from denying women access to basic health care without warning.”
 
M. Tracey Brooks, President and CEO of Family Planning Advocates of New York State said, “Women hit with unexpected, budget-busting costs for contraception could be forced to make decisions that are bad for their reproductive health. The Reproductive Rights Disclosure Act ensures workers and potential employees will not be surprised by sudden changes to their health care coverage. The New York Senate leadership failed to take the first step with the Boss Bill which would have prevented workplace discrimination based on women's reproductive health care choices.  A healthy, productive New York State work force depends on accessible, affordable reproductive health care.”
 
Reina Schiffrin, President and CEO of Planned Parenthood Hudson Peconic said, “The Hobby Lobby decision clearly prioritized the desires of bosses over the health care needs of women. Contraception is basic, essential health care, and the most effective forms of contraception can be prohibitively expensive without full insurance coverage. Birth control decisions should be made based on a woman’s needs not her paycheck. I applaud Attorney General Schneiderman’s Reproductive Rights Disclosure Act because it recognizes that contraception is essential health care and  women have the right to know if an employer isn’t providing the insurance coverage they want and need.”
 
Anne Davis, MD, MPH, Consulting Medical Director for Physicians for Reproductive Health said, “I support all forms of contraception being covered as preventive care and the decision about which method of contraception to use should be made by a woman and her doctor, not a woman and her boss. If companies are going to deny that essential health care for their employees, a notification period will allow a woman and her doctor to come up with an alternate plan for contraceptive care.” 
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