Congressional Record, Volume 158 Issue 33 (Thursday, March 1, 2012)

[Congressional Record Volume 158, Number 33 (Thursday, March 1, 2012)]
[Senate]
[Pages S1162-S1173]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

MOVING AHEAD FOR PROGRESS IN THE 21ST CENTURY ACT

The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 1813, which the clerk will
report.
The assistant legislative clerk read as follows:

A bill (S. 1813) to reauthorize Federal aid highway and
highway safety construction programs, and for other purposes.

Pending:

Reid amendment No. 1730, of a perfecting nature.
Reid (for Blunt) amendment No. 1520 (to amendment No.
1730), to amend the Patient Protection and Affordable Care
Act to protect rights of conscience with regard to
requirements for coverage of specific items and services

The ACTING PRESIDENT pro tempore. Under the previous order, there
will now be 90 minutes equally divided and controlled between the two
leaders or their designees.
The Senator from Louisiana is recognized.
Mr. VITTER. Mr. President, I rise in strong, passionate support of
the Blunt amendment. It is a very important amendment which we will be
voting on as an entire Senate at 11 a.m. this morning.
The Blunt amendment is an absolutely necessary measure to fix what is
a very egregious overstepping of the bounds of government in terms of
the newly articulated ObamaCare mandate on religion. As we all know
through the debate and discussion of the last several weeks, the Obama
administration has made it clear that everyone, including persons of
faith, including religious institutions, are not only going to be
forced to buy a product in the marketplace--and many of us think that
itself is unprecedented and unconstitutional--but it gets worse because
they will be forced to buy a product in the marketplace that violates
their conscience, that violates their core beliefs.
Catholics and many other Christians, many people of faith, do not
believe in certain activity and treatment that is mandated now to be
covered by this mandatory insurance. That is crossing a line we have
never before crossed in this country, in terms of government power,
government mandates, and government intrusion into the conscience of
others and to the free exercise of religion. We absolutely need to fix
this.
This is a fundamental conscience issue. This is a freedom of religion
issue. That is exactly why it is so important.
Let me also clarify, this is not merely about contraception. Folks on
the other side of the debate and most of the media constantly put it
merely in those terms. First of all, those measures in and of
themselves violate the conscience of many Americans. But, second, it is
not just about that, it is about abortion, it is about abortion-
inducing drugs such as Plan B, it is about sterilization. Clearly, the
government mandating Americans to buy, to pay for, to subsidize these
measures violates the conscience of tens and tens of millions of
Americans. That is why we must act, hopefully today, starting today, by
passing the Blunt amendment.
The arguments made on the other side, when we look at them carefully,
do not hold water. First of all, there is President Obama's so-called
accommodation, so-called compromise, which is not an accommodation and
is not a meaningful compromise at all. What did he say? He said: OK. We
are not going to make Americans, persons of faith, religious
institutions buy coverage they have moral qualms with. We are merely
going to make the insurance provider provide that coverage whether the
customer wants it or not. Well, that is a completely superficial and
completely meaningless word game. The insurer is providing this how?
What payment is supporting it? The only payment the insurer is getting
is from a customer who objects to the coverage. So who is supporting
it? Who is paying for it? Clearly this is a word game. If it weren't
clear enough for the typical person or institution involved, what about
institutions--and there are many of them--which are self-insured? What
about the University of Notre Dame, Catholic University, or Catholic
institutions? They don't go to an insurance company to buy insurance;
they are self-insured. That word game doesn't even work on the surface
there. Those cases number in the hundreds or thousands around the
country, and that is a clear example of how that so-called compromise
or accommodation is merely a sleight of hand and a word game.

Another argument which the other side has made in this debate is that
somehow correcting this situation through the Blunt amendment or
through similar measures will shut down access to these services. That
is patently not true. These services, these medicines, and other
treatments are widely available in every community across the country
at little cost or no cost for folks who cannot afford it, and that is
not going to change. It is absolutely not necessary to tear away
religious liberty and violate conscience rights of millions of
Americans with that argument in mind. It isn't true.
That is why respected religious leaders, such as Cardinal-designate
Timothy Dolan, president of the U.S. Conference of Catholic Bishops,
has argued strenuously and passionately against this mandate. Cardinal-
designate Dolan said:

Never before has the Federal Government forced individuals
and organizations to go out into the marketplace and buy a
product that violates their conscience. This shouldn't happen
in a land where free exercise of religion ranks first in the
Bill of Rights.

And so that is what it comes down to, free exercise of religion and
fundamental conscience protection. The first amendment to the
Constitution, the first item in the Bill of Rights, it doesn't get much
headier or more significant than that, and that is what this is all
about. Again, it is all about, yes, contraception, but abortion,
abortion-inducing pills like Plan B, and sterilization.
Mr. President, please assure me that the free exercise of religion is
not now a partisan issue. Please assure me that we are going to correct
this situation and not allow this egregious overstepping of the bounds
of the power of government. We must act to stop this grave injustice,
and I hope we start that process in a very serious way today by voting
positively and passing the Blunt amendment.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from New Jersey.
Mr. LAUTENBERG. Mr. President, we are engaged in the business of the
Senate, and it is not always discernible that it is the business of the
people. What we see taking place these days is a principle mantra of
Republicans on the campaign trail seeking more freedom for the American
people. The Republicans like to say they ``don't want government
interfering in people's lives.'' Then I ask: Why the devil are we
debating a Republican amendment that limits a woman's freedom to make
her own health care choices? With women, the Republicans have a
different idea about freedom. They want government to interfere in the
most personal aspects of women's lives.
The amendment offered by the Senator from Missouri, the Blunt
amendment, will allow a woman's employer to deny coverage for any
medical service that they, the employer, have a moral problem with.
Imagine that. Your boss is going to decide whether you are acting
morally. The Republicans want to take us forward to the Dark Ages again
when women were property that they could easily control and even trade
if they wanted to. It is appalling that we are having this debate in
the 21st century.
Yesterday we heard something astounding. It came from Rush Limbaugh,
who is a prime voice of modern conservatism in this country. Yesterday
he said--and I had it checked because I wanted to be sure that I am not
misquoting anything--that a woman who wants affordable birth control is
``a prostitute.'' Talking

[[Page S1163]]

about your wife, your sister, your daughter, your child. This is
hateful, ugly language, and we condemn it. Republicans like to talk
about the Constitution and freedom, but once again, when it comes to
women, they don't get rights, they get restrictions. This foul
amendment before us tells women that you cannot be trusted to make your
own health care decisions. Your employer may judge if your actions are
moral. More than 20 million women in America--including more than
600,000 in my home State of New Jersey--could lose access to health
care services they need under this scheme.
The Republican attack on women is not just happening here in
Congress, it is happening on the Presidential campaign trail. I show
you here what one of the two leading Republican Presidential candidates
has to say about birth control:

I'm not a believer in birth control . . . I don't think it
works. I think it's harmful to women. I think it's harmful to
our society . . .

That is the kind of judgment they want to put in employers' hands? It
is outrageous. Imagine that in a Presidential contest, dismissing the
kinds of things that millions and millions of women rely upon to
protect their health, to keep them from unwanted pregnancies, to keep
them from disease, to keep them from all kinds of things that can make
life difficult.
Women of America, former Senator Santorum and Republicans here almost
require a tap on the head: Don't worry. We know what is best for you.
I want to be clear: Rick Santorum does not have a physician's
training. He is a politician. And when we look at polls across the
country, we see what the people in our society are thinking about
politicians these days. It is time for Senator Santorum and his fellow
Republicans to mind their business. Let's get on with the needs of the
country and put people back to work, give them health care, and let
them have an education. No, we are going to spend time here keeping
people from going to work. There are thousands of jobs that are at
stake on the legislation that is in front of us.

I have five daughters and eight granddaughters and the one thing that
I worry about for them, more than anything else, is their health. I
want to know when I see those little kids--the youngest of my
grandchildren--I like to see their happy faces; I like to see them
feeling good. And if one of my daughters or my son says so-and-so has a
cold and this one fell and broke something, that is my worry for the
day. That is the way it is. So I want them to have doctors making
decisions, not some employer who has a self-righteous moral view that
he wants to impose on my daughters, my granddaughters, or my wife. No,
I don't want Republican politicians making decisions about my family's
health care or yours or even those who are on the other side.
On our side of the aisle, we believe that women are capable of making
their own health care decisions, and that is why President Obama is
trying hard to make contraception more affordable because he knows it
is basic health care for women and almost all women of age have used
birth control at some point in their lives, and yet many have to
struggle to pay for it. We ought to applaud President Obama for trying
to make it more affordable. He believes they are capable of making
their own decision. He wants them to be healthy. His proposal respects
the rights of religious organizations that don't wish to provide birth
control to their employees. Under the President's plan, women who work
for religious organizations don't have to go through their employer to
get affordable contraception. These women will be able to get it
directly from their insurance company, and I think it is a reasonable
compromise. But some of our Republican colleagues refuse to recognize
this.
Listen to what the other side is saying. You don't hear the
Republicans talking about empowering women or giving them more
opportunities. No, the GOP agenda is about denying benefits,
restricting access, and taking away options.
We weren't sent here to intrude in the lives of fellow citizens or to
drag women back to the Dark Ages. We were sent here to offer people
options, not obstacles. So I urge my colleagues to reject this
amendment, hold your head high and say to your family, your daughter,
your wife, your sister, your mother: We want you to be healthy. That is
our prime issue in life. I ask that my colleagues turn down this
amendment.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Utah.
Mr. HATCH. Mr. President, very shortly we will be voting on the
amendment filed by my colleague from Missouri, Senator Blunt--the
Respect for Rights of Conscience Act. I am a cosponsor of this
amendment, and I think we all ought to be cosponsors of it. Many of my
colleagues have supported it as well, and for good reason. It provides
statutory protection for one of our deepest constitutional
commitments--the right to free exercise of religion. It is an effort to
fulfill our oath to protect and defend the Constitution. It is an
effort to put the enduring constitutional rights of the American people
first, over any fleeting and controversial political interests.
In my view, those who support this amendment have been unjustly
criticized over the past few days, and they have been unjustly
criticized on a political basis, not really on an intellectual basis.
Unable to win this debate through a fair criticism of the amendment, it
has been mischaracterized and misrepresented.
Opponents are desperate to distract the public from one simple fact:
This amendment is necessary because of ObamaCare, the health care law
that manifests new threats to personal liberty and individual rights
with each passing week. It is an indictment of the President's
signature domestic achievement and all of those who support it.
ObamaCare took over and regulated the Nation's health care sector--
one-sixth of the American economy. It stripped individuals and
employers of their right to go without coverage and the right to
determine what type of coverage they would have.
ObamaCare is what has brought us here today. The health care law
requires that women's preventive services, including sterilization and
access to abortion-inducing drugs, be included in health care coverage
beginning in 2012. This is a questionable policy in and of itself. Like
the rest of ObamaCare, it assumes the government is able to provide all
good things to the American people through a simple mandate with no
consequences for cost or access.
The problems with this mandate were compounded, however, when the
administration, deferring to its feminist allies, determined that the
mandate would apply to religious citizens and institutions. To their
credit, these institutions, which are compelled by this regulation to
violate their moral beliefs, announced that they would not comply with
this unjust law. They refused to roll over and allow the government to
force them to provide sterilizations and abortion-inducing drugs to
their employees. They stood as a witness for constitutional liberty,
the free exercise of religion, and against an administration that put
basic partisan politics above our beloved Constitution.
The President's self-proclaimed compromise does absolutely nothing to
minimize the constitutional problems with this mandate. The Department
of Health and Human Services never--never--consulted with the
Department of Justice about the constitutionality of this mandate, and
it shows. That is why we are here today: to undo just some of the
damage to our liberty and our Constitution wrought by ObamaCare.
All of the misleading arguments regarding this amendment run square
to one simple fact: ObamaCare only became law in 2010. There was no
Federal mandate for these services prior to 2010, and the regulations
have not yet gone into effect. In other words, nobody is taking
anything away from anybody. But to hear the other side talk, one would
think the cosponsors of this amendment and the groups who support it
are committed to a monstrous deprivation of women's rights. With due
respect, that is absolute hogwash.
I appreciate that the advocates of ObamaCare might be embarrassed by
this episode, but we are not going to

[[Page S1164]]

let them get away with a gross misrepresentation of what we are trying
to do here.
Prior to 2010 and the partisan passage of ObamaCare, access to
contraceptives was abundant and nobody advocated that the Federal
Government involve itself in those personal, moral decisions. After
2010, access to contraceptives remained abundant, with nobody
advocating for restrictions on their access.
Here is what changed in the meantime. In 2010, ObamaCare mandated
that health coverage include sterilizations, abortion-inducing drugs,
and contraceptive coverage. As a result, religious institutions and
persons will now be compelled by the State to violate their
conscience--compelled by the Federal Government to violate their
conscience. It isn't just the Catholic Church; it is many churches that
feel just the same way as the Catholic Church does. It is a moral and
religious issue that should not be interfered with by the Federal
Government.
Prior to 2010 and the passage of ObamaCare, the first amendment was
intact. Today, the first amendment is in tatters. The Democrats who
passed this law know this to be true, so they have to distract and
confuse. They claim Senator Blunt's amendment is overbroad. They claim
religious institutions and individuals would deny critical health
services, such as blood transfusions and psychiatric care. The Senate
Democratic steering committee claims 20.4 million women who are now
receiving coverage for preventive services would lose that coverage
under this amendment. Absolutely none of this is accurate.
Again, all this amendment does is restore the pre-ObamaCare status
quo. All it does is restore the religious liberties and constitutional
freedoms that existed prior to this government takeover of our Nation's
health care system. It restores the conscience protections that existed
for all Americans for the past 220 years.
If this amendment passes, here are a few things that do not change:
State mandates for health coverage will remain in place. Title VII of
the Civil Rights Act of 1964, preventing discrimination on the basis of
race, color, religion, sex, or national origin in employment benefits
remains in place. The Pregnancy Discrimination Act, requiring health
plans to cover pregnancy, childbirth, and related conditions remains in
place. The Americans With Disabilities Act prohibiting s discriminatory
withholding of health care and other benefits for people with HIV or
other disabilities remains in place. And the Mental Health Parity Act
of 2008 requiring equitable coverage of mental illness remains in
place.
Prior to ObamaCare, very few people excluded any of the services that
Democrats are pointing at in their efforts to scare the American
people, and few will do so should the Blunt amendment pass. But our
Constitution demands that those individuals and institutions that
object to providing these services on religious and moral grounds be
protected. That is what the Constitution demands.
Even though the individuals and institutions protected by the Blunt
amendment are a minority, it is that minority that our first amendment
exists to protect. The rule agreed to by President Obama would force
religious organizations to violate their moral convictions. This cannot
be allowed to stand.

I call on my colleagues on the other side to wake up and realize what
they are doing. There is only so much politics that should be played
around here, and this is an issue we should not be playing politics
with. It involves religious freedom and liberty.
There was a time when a regulation of this sort would not have been
countenanced by this body, let alone some of the arguments that have
been made on the other side--trying to obscure and to make a political
issue out of this.
I have had the good fortune of representing the people of Utah for
many years. It has been an honor for me. In that time, I have seen many
good people on both sides of the aisle serve well in the Senate. One
thing we could always be sure of was that when it came to our first
amendment freedoms--in particular, the freedom to practice one's
religion without interference from the State--Republicans and Democrats
would join together in the defense of religious rights and liberty. Why
are we not joining together? Yet under this administration, our Bill of
Rights has been subordinated to President Obama's desire to micromanage
the Nation's health care system.
It was not always this way. When the Senate considered President
Clinton's health care law--itself an attempt at a sweeping takover of
the Nation's health care system--giants such as Daniel Patrick
Moynihan, a Democrat and colleague who served as the chairman of the
Finance Committee, stood up for broad conscience protections such as
the one we are considering today in the Blunt amendment.
I worked closely with many of my Democratic colleagues in passing the
Religious Freedom Restoration Act. I was the author of that bill. We
passed it. It overwhelmingly passed. I was there when President Clinton
signed it into law. A lot of religious leaders were there and a lot of
liberals and conservatives were there who were very happy to pass that
law. But, apparently, those days of bipartisanship are laid to rest,
and they are long past.
Today the administration ignores the clear dictates of the first
amendment and the Religious Freedom Restoration Act.
ObamaCare is unconstitutional to its core. It threatens the liberties
announced and protected by our Declaration of Independence. This
mandate is just one more example of how the law restricts personal
liberty. It will force religious persons and institutions to violate
their beliefs or pay a fine.
Defending this disaster at a townhall meeting recently, one
Democratic Member of the House of Representatives told her constituents
that they were ``not looking to the Constitution'' when they supported
this mandate. No kidding. Our Founding Fathers fought a revolution to
prevent this type of tyranny; and that is what this is. This is
tyranny. It is the political bullying of a religious group with--in the
views of the President's allies--unpopular religious beliefs. So for
political reasons the religious groups who differ with this are being
pushed around. The media, polite society, and the administration are
picking on religious freedom and on religious people.
Democrats like to claim they stand for the little guy. Not in this
case. In this case, the little guy is being pushed around by the State.
I, for one, am not going to stand for it. This is discrimination
masquerading as compassion, and I am going to fight it. My oath of
office, an oath to protect the Constitution, compels me to do this.
I am putting the administration on notice: I am not done with you,
and my colleagues are not done with you. Whatever happens with this
vote today, you are going to be held to account for your actions. We
are going to get to the bottom of how this happened and, ultimately, I
am confident that justice will prevail.
Ultimately, I am confident justice will prevail.
I commend my colleague from Missouri and all of the Members who have
spoken out for this amendment. It is reasonable. It is just. I urge all
of my colleagues to vote for it.
The American people understand this amendment is necessary because of
ObamaCare, and they know who is responsible for this monstrosity. I
expect they will look favorably on those who stand up for the first
amendment today and attempt to correct their folly by restoring the
conscience protections that preexisted ObamaCare. The reaction to those
who stand by this historic deprivation of first amendment rights? Only
time is going to tell.
Let me close by saying there are very few things that get me worked
up as much as I am about this. I feel very deeply about a lot of
things, but the first amendment, to me, means everything. I have heard
the President say, well, we will just require the insurance companies
to provide this. Give me a break. A lot of Catholic institutions are
self-insured, and that is true of other churches as well.
Religious beliefs are important. The first amendment is important.
The free exercise of religion is important. That is what is involved
here.
My gosh, to hear these arguments that this is all about
contraception--that is not what it is about. It is about the right of
people with religious beliefs to practice their religion, unmolested by
government.

[[Page S1165]]

I want to commend the distinguished Senator from Missouri. It takes
guts to stand up on these issues when they are so distorted by some on
the other side. I would be ashamed to make some of the arguments that
were made on this issue. The Catholic Church, which is the largest
congregation in our country, is not going to abide by this mandate. And
I am 100 percent with them.
When we start going down this road, let me tell you, beware, because
that is when tyranny begins. The religious commitments of our Nation
have made it the greatest Nation in the world. I have to tell you,
those of you who vote against this amendment are playing with fire.
Those of you who vote against this amendment are ignoring the
Constitution. Those of you who vote against this amendment are wrong.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Colorado is
recognized.
Mr. BENNET. Mr. President, I want to, since he is on the floor,
recognize the Senator from Utah and his extraordinary service in the
U.S. Senate. We do not agree on this issue, but he has done a
tremendous job for the people of Utah over many years.
I rise to talk a little bit about the amendment we are considering
that would allow all employers and insurers to deny coverage,
particularly for women, on any health care procedure or service they
object to--not the women, but the employers and the insurance
companies--on moral or religious grounds.
The first thing I want to do--and I have not been around here a long
time, but I want to first observe in what context we are discussing and
debating this amendment. We have devoted extensive floor time on this
amendment about contraception and the lack of coverage for women's
health care in the context of a job-creation bill, in the context of
the Transportation bill. This is the bill I hold in my hand. This is
the bill that is on the floor of the U.S. Senate right now. The title
says:

A bill (S. 1813) to reauthorize Federal-aid highway and
highway safety construction programs, and for other purposes.

I would have thought those ``other purposes'' would be related to
transportation, transit, to job creation in the United States. I do not
think the ``other purposes'' that are talked about in this bill have
anything to do with contraception or women's health. But that is what
we are spending our time debating this week on the floor of the Senate,
instead of passing this Transportation bill and putting people in this
country back to work. How is this conversation relevant to job creation
or to infrastructure? It is not.
In my home State of Colorado, I have held hundreds of townhall
meetings in red parts of the State and blue parts of the State, and I
do not remember a single time this issue--the issue that is of concern
with this amendment--has been raised by anybody--by anybody--in 3
years.
I can tell you what people are talking about in Colorado. They want
to know why we are not spending our time working on how to create more
jobs for them, more jobs in the 21st century in this country or how to
fix this Nation's debt or deficit or how we pass a bipartisan
Transportation bill that creates immediate jobs and fixes a crumbling
infrastructure, while maintaining the infrastructure assets our parents
and grandparents had the thoughtfulness to build for us--another case
where political games are risking our ability to provide more
opportunity, not less, for the next generation of Americans, something
every single generation, until this one at least--the politicians--has
treated as a sacred trust. Instead, over the last several weeks, we
have continued to debate about women and whether they should have
access to the health care services they need, and whether they should
be the ones who are able to make the decisions about the health care
services they need. And we sit here and wonder why the U.S. Congress is
stuck at an approval rating of 11 percent. Maybe it is because we are
talking about contraception in the context of a Transportation bill.
I have a wife and three daughters--12, 11, and 7. There are a lot of
women in my life telling me what to do every minute of every day and
during the week, and thank goodness for that. One thing I know is they
do not need to be told by the government how to make their own health
care decisions--nor do the 362,000 Colorado women who would be affected
immediately if this amendment passed.
This amendment is written so broadly that it would allow any employer
to deny any health service to any American for virtually any reason--
not just for religious objections. Women could lose coverage for
mammograms, prenatal care, flu shots, to name only a few essential
services, and, yes--and yes--the right to make decisions around
contraception and their own reproductive health.
My State, the great State of Colorado, is a third Democratic, a third
Republican, and a third Independent. I can tell you, the last time
there was an initiative on the ballot in my State to let the government
intervene in women's health care decisions, it was defeated by 70
percent of the voters. Seventy percent of the voters said: You know
what. We would rather leave these decisions to women to make for
themselves. That is what my daughters want as well.
People are speaking loudly and clearly on this issue all across the
country. These are not the issues we should be debating right now. We
need to be having the conversations people are having at home in my
townhalls instead of distracting them with politics: How do we create
more jobs? How do we reform our entitlements so Medicare, Medicaid, and
Social Security are here for our grandchildren and for our children?
How do we create an education system that is training our people for
the 21st century? How do we assure poor children in this country that
they can have a quality education and make a contribution to this
economy?
So I urge my colleagues to oppose this amendment and help us get back
on the road to passing a bipartisan Transportation bill that will
create new jobs and make substantial improvements in our economy and
infrastructure. There is a time to debate this, but that time is not
now when we are having this infrastructure discussion, we are having
this transportation discussion.
I urge my colleagues to support the rights of women all across this
country and their families and reject this amendment.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Missouri is
recognized.
Mr. BLUNT. Mr. President, the reason this amendment is being debated
right now is because the administration issued an order that is
unprecedented. It is unprecedented because the mandate provisions of
the health care bill are also unprecedented. That is the reason we are
debating this now. The administration brought this up. I am still
amazed by the fact that the administration would not have excluded all
of at least the faith-based institutions from their order.
The Catholic hospitals, the Baptist universities, the Catholic
schools of all kinds, the Christian schools of all kinds, the Muslim
daycare centers--why would they not have exempted these people? They
say: We exempted the church itself, as if the work of the church or the
character of the church or the faith distinctives of the church, the
synagogue, the mosque are only what happens inside that building.
There is a reason we have so much of our health care, our social
services provided by faith-based institutions, and one of the reasons
is those faith-based institutions want those institutions--that they
fund, they support, they encourage--to reflect their faith principles.
What is wrong with that?
There are a couple of issues here. One is the separation in the
President's mind of the work of the church or the synagogue or the
mosque from the building itself. It is impossible to separate those two
things; otherwise, you have another high school that has a chaplain,
you do not have a Christian high school or you have another hospital
that is run by the Sisters of Mercy, you do not have a Catholic
hospital, because you have decided you are going to define the
character of what that hospital stands for and what they provide.
The administration recently took a Lutheran school to court. The EEOC
took a Lutheran school to court and asserted that school did not have
any special constitutional protections as to how they hired people, and
you could have heard all these same kinds of arguments: Well, they will
discriminate

[[Page S1166]]

against people; they will not hire people who otherwise should be
hired; they will not make accessibility to the handicapped. You could
hear all of that sort of thing, none of which would have been true, and
the Supreme Court voted 9 0 that the administration was wrong.
You can try all you want to separate these two issues, but they do
not separate. They are both fundamental first amendment issues.
Let's talk about some of the things I have heard here this morning.
My good friend, Senator Bennet from Colorado, said if this amendment
passed, 362,000 Colorado women would lose their current health care
services. Why would that be the case at all? This amendment does
nothing to modify State or Federal laws that are now in effect. If you
have those services now, there is nothing in this amendment that would
change the world we live in right now. People have the same protection
today to exert their religious views in their health care policies that
they provide as an employer that they would have if this amendment
passed. They have those protections now. They would not lose those
rights.
It does not modify any State or Federal law. And there are plenty of
Federal laws. There is a Federal law on pregnancy discrimination that
says pregnancy-related benefits cannot be limited to married employees.
That law does not go away if this amendment passes. State laws that
require things to be in health care policies, if you have one, do not
go away if this amendment passes. It only amends the new mandate
provisions of title I of the new health care law, the health care law
that has received so much controversial attention, for good reason. And
this is one of those reasons.
Supplying respect for religious beliefs and moral convictions is
already part of Federal health programs of all kinds, it just does not
happen to be in the new law. There is no health care law since 1973
that does not have these provisions in this bill that are part of the
law. The law is there now, and the world does not change. No Colorado
woman will lose any health care benefits they have today if this
amendment passes. No New Jersey woman will lose any benefits they have
today if this amendment passes.
Regarding any health care service people may be worried about, we
asked one question: Are people allowed to exclude this service from
their health care benefit under current State or Federal law? If they
are not allowed to exclude it under current State or Federal law, they
would not be allowed to exclude it if this amendment passes. If they
are not allowed to exclude it, they are still not allowed to exclude it
under this amendment. And if they are allowed to exclude such service,
why haven't the critics been protesting before? This amendment does not
change anything in the law today. So why haven't we heard these
speeches before about how the law does not protect employers from
deciding not to offer this or not to offer that? In fact, this makes it
much more difficult to exclude services than it is now.
In fact, it allows for an actuarial equivalent to have to be added to
a policy if you take something away. That means there is no financial
reason--there is no financial reason--to exclude a service because if
you exclude a service because you believe it is the wrong thing, the
Secretary of Health and Human Services has the power to say: You have
to come back and include a new service of equal value that we did not
require.
I assume everybody on the other side of this debate would think that
employers must be motivated to exclude these services if they are not
legitimate religious beliefs and moral conviction; that they must
exclude them because they would save some money. We do not allow them
to save money. So there is no reason. The Secretary of Health and Human
Services can say: OK. You can exclude that, but you have to include
something we did not require something of equal value. That means
something that is going to be equally used. That means something that
is going to be equally costly to the employer.
Why would the employer do that? I mean, why are we not hearing all
these stories now about how--why did the 200,000 women who have these
health services today--I think it is 20 million--why do they have those
services? There is nothing in the law that requires it. This law does
not change the laws today.
From the point of view of having a political discussion instead of a
discussion about what the amendment does or why it is consistent with
what we have always done, I think the other side has done a great job
of that. But consistently we have protected this principle of first
amendment freedoms. In fact, in 1994, in the bill Mrs. Clinton, the
First Lady at the time, worked so hard for, that was introduced by
Senator Moynihan--here is what it said. This was the bill that also
would require people to provide insurance. You know we do not have much
about insurance because we have not required people to provide it
before. There are some Federal health benefits about insurance I may
talk about in a minute that also are protected.
But this was a bill that required people to provide insurance, and
Senator Moynihan said about his bill in 1994, less than 20 years ago,
``Nothing in this title shall be construed to prevent any employer from
contributing to the purchase of a standard benefits package which
excludes coverage for abortion and other services if the employer
objects to such service on the basis of religious belief or moral
conviction.''
The most amazing aspect of this whole debate, to me, is that in 20
years, this has gone from language that would be in what was considered
the most progressive, liberal health care bill that had ever been
offered, by one of the most respected Senators by Americans of all
political philosophies but most agreed with by Americans of the more
liberal political philosophy, that he would just put that in the bill--
I have asked: Is there any indication in the debate on that bill that
this was a big item? The answer I hear is: No, it was not a big item
because it was part of who we are. It was part of what we had been as a
nation. It was part of protecting the first amendment.
This amendment does not mention any procedure because I do not know
what kind of--and nobody knows what might be, at some future date,
offensive to somebody's religious beliefs, but they have no financial
reason to not provide a service. So the only reason they would have
under this amendment would be a true moral objection.
I had some initial hesitation myself. I said: OK. I understand the
faith-based institutions. I used to be the president of a Christian
university and so I understand why it is important those institutions
keep their faith-based distinctions. But what about other employers?
Frankly, I did not have to think about that very long to realize that
if someone is of a faith that believes something is absolutely wrong,
as an employer why would they want to pay for that? They believe this
is a wrong thing to do. Why would they want to pay for that?
The language of equivalency in this bill means, if they choose not to
pay for that, the Secretary can say: OK. Come up with something else
that would be equally used and equally valuable that they would pay
for. So there is no financial reason not to do it. The only reason not
to do it is they truly believe it is a wrong thing to do.
Surely, every person in the Senate has at least one thing that
because of religious reasons they believe is wrong to do. Do they want
to be forced by the government to be a participant in that wrong thing?
The things we are talking about, in my particular faith, I am not
opposed to all these things the President said he would require. But
that does not mean I should be any less concerned about people who
legitimately, week after week at their place of worship, express this
to be something that they would not participate in.
If the congregants want to go on their own and figure out how to
participate, that is one thing. If they want to go on their own and
provide insurance to their employees that include these things that
they heard at church are wrong to do, that is another thing. But if
they want to say, look, I am not going to do that--but under the new
mandate, we do not do anything that eliminates the mandate. There is
still a mandate--under the new mandate, I am not going to do that, but
I am going to have to add something to the policy to the mandate that
would be of equal financial value, of equivalent value.

[[Page S1167]]

So the only reason to object is they believe it is wrong, and that
what the first amendment is all about. That is why, consistently,
through employment law we have protected--even though the
administration lost a 9-to-0 case trying to interpret that the same way
they want to interpret this--the government knows best. If we are
allowed to, we will abuse the hiring situation. Now they say if we are
allowed to, we will abuse the health care providing situation.
I think we have taken away the financial incentive to do that. I
believe what this does is protect first amendment rights. The first
freedom in the founding documents is freedom of religion, and we have
protected it over and over and over again. Every Member of this Senate
who has been here in any recent time, except the very newest Members,
have voted for bills that had this language in them, whether it was the
Clinton administration, whether it was the Moynihan proposal, whether
it was the Patients' Bill of Rights or the religious freedom law. It
was all there.
I think it is--to come up with all these cases that they would not
treat prenatal care, might not treat cancer--why would they not do
that? Why would they not do that? If they do not treat that, they have
to pay for something else of equal value. Look at the very last
provision of this amendment.
So there is no financial reason not to do this. The only reason is
that they believe it is against their religious views. The phrase we
use in this bill is exactly the phrase Senator Moynihan used, it is
exactly the phrase Frank Church used, it is exactly the phrase people
on the floor at this moment voted for when they said we do not want
people to have to participate in capital punishment or prosecuting
crimes where capital punishment is a possibility because of religious
belief or moral conviction.

It was good enough for everything up until now, including this
principle, until we get to 2012. Suddenly, we have all these reasons
people cannot make faith decisions that relate to providing health care
to employees. I disagree with that.
I think the first amendment protects that. I believe if and when--if
this rule goes forward, it will go to the Supreme Court. It will be
something close to that 9-to-0 decision on hiring rights. There is no
difference in the principle. Again, I would say, look at the last
section of this bill if one believes employers are going to do this to
save money.
Otherwise, what motivation do they have, besides the moral conviction
and religious belief that is protected by the first amendment? I hope
my colleagues will read this amendment carefully, will understand that
protection currently in the law is taken away by this amendment. If one
has a right now, one would still have it if this amendment passed. To
argue otherwise denies the facts of both people who have coverage today
and 220-plus years of constitutional protections in the country.
Read the bill. It may not change any minds today. But this issue will
not go away unless the administration decides to take it away by giving
people of faith these first amendment protections.
The ACTING PRESIDENT pro tempore. The Senator from Washington is
recognized.
Ms. CANTWELL. Mr. President, I rise to join this debate. I certainly
respect the Senator from Missouri for his views and for his own
interpretation of what he thinks his amendment does. But I could not
disagree more on what the amendment says, what the amendment will do,
and what the process has been for us to get to this point.
We are down here, and I know my own office, myself, my focus is on
our economy and getting our country moving again and focusing on jobs.
So when I see a transportation bill that is now mired in this debate, I
ask myself: How much more time are we going to waste debating and
redebating an issue we have been debating?
I know some people think this is an important debate related to
transportation. But it seems as if the other side of the aisle, in all
the discussions we have been having for the last year about jobs, about
appropriations bills, about the debt ceiling, about moving forward on
reconciliation all come down to one thing: Let's get rid of
reproductive health care for women.
In February of last year, they introduced a bill, H.R. 1. They said,
let's defund Planned Parenthood. Then, later in April, came a big
moment of are we going to move forward with the continuing resolution.
It was all brought to a halt until we could have a vote on defunding
Planned Parenthood. Then we had another vote on it.
In the latest discussions about the payroll deal, there were
discussions about whether a rider was going to be in there that cut
women's reproductive health care access and appropriations bills, just
last December, same issue. Every step of the way it seems as if there
is an assault on women's reproductive choice and having access to
health care.
I know my colleague from Missouri thinks this issue might just be
about something the administration has done in the health care bill,
but his party is making everybody in America believe we cannot get our
economy going and balance our budget and deal with our deficit unless
we defund women's health care choices. Nothing could be more incorrect
about that logic.
We are holding up the business of America just for these votes on
basically curtailing rights to access that women already have. It is so
frustrating to think we would be going backward on this. I applaud the
chair of the Transportation Committee because she has worked hard on
this legislation. It is 30,000 jobs in the State of Washington by the
Department of Transportation estimate.
I know it is going to help save about 1.8 million jobs and create
another million jobs on a national basis. So I certainly want to get to
the job at hand. When I think about the 435,000 Washington women who
would be affected by the Blunt amendment, by curtailing their access to
health care, and while some people think it is about contraceptives,
which it is about that, but it is also about breast cancer screening--
and we have one of the highest rates of breast cancer in the country,
so we want to make sure we get these screenings done--about wellness
exams, about diabetes screening, about flu shots, about vaccinations,
about mammograms, about cholesterol, we are having this debate instead
of talking about transportation infrastructure, about defunding these
vital programs. The reason why I say this is so important to us and so
important to us in Washington State is because we have been having this
debate, we have been having this debate since almost 2001, 2002, on the
Bartell drug decision.
So my colleague who says: These businesses would not dare do anything
based on costs under my amendment, I think all he has to do is look at
the Federal cases that were brought against major employers such as
Walmart, such as Bartell, such as Daimler-Chrysler, and other
organizations that were not providing full reproductive choice for
women and discriminating against them in their health care benefits.
A Federal law, a Federal statute was used to say these practices were
discriminatory. So the same debate we are having today has played out
in State after State--in our State, the Bartell drug decision. In that
decision, the courts found we cannot use these principles to
discriminate. It is a violation of the civil rights clause.
While I know my colleague thinks this is a new debate, it is not a
new debate. It is a debate that has been had in America among States,
and courts have used Federal statutes to protect the rights of women.
Now I see we are going to have this debate today. I ask my colleagues,
how many more times this year are we going to interrupt the business of
the Congress on things such as transportation, on infrastructure, to
have a debate that has already been settled?
I know my colleague thinks the amendment is very narrowly written; it
is not.
It is not. I don't think that is the interpretation of any legal
mind, that it is narrowly written. It will affect and give employers
the right--the courts have already said they don't have the right to
discriminate. It will reopen the cases of those large employers that
have already been found against and say to them: Yes, you can come up
with a reason and curtail access to preventive health care for women
that is so needed at this time.
I ask my colleagues to turn down this amendment, and let's get at the

[[Page S1168]]

business at hand, focusing on our economy and jobs, and stop making
women's health care a scapegoat for what you think is wrong with
America. It is actually what is right with America. Let's focus on
jobs.
The PRESIDING OFFICER (Mr. Brown of Ohio). The Senator from Maine is
recognized.
Ms. COLLINS. Mr. President, I have always been a very strong
proponent of family planning programs and of measures to promote and
protect women's health. Like many Americans, however, I was very
concerned in January when the Department of Health and Human Services
issued a final regulation to require religious universities, hospitals,
charities, and other faith-based organizations to pay for health
insurance that covers contraceptives and sterilizations regardless of
the organization's religious beliefs. I believe such a mandate poses a
threat to our religious freedom and presents the Catholic Church and
other faith-based organizations with an impossible choice between
violating their religious beliefs or violating Federal regulations.
In February President Obama announced what he termed an
``accommodation'' that would require insurance companies, rather than
religious organizations, to provide these services. But as I read the
details of that ``accommodation,'' it became very clear to me that many
parts of the plan remained unclear. A key issue, for example, revolves
around self-insured religious-based organizations. There are many
Catholic hospitals and universities that are self-insured and thus act
as both the employer and the insurer, and a very important issue is how
the rule would treat these self-insured faith-based organizations. But
the rule was totally unclear. It simply said that the ``Departments
intend to develop policies to achieve the same goals for self-insured
group health plans sponsored by non-exempted, non-profit religious
organizations with religious objections to contraceptive coverage.''
In an attempt to clarify this critical issue, I sent a letter to
Secretary Sebelius asking for specific clarification on how faith-based
organizations that are self-insured and thus act as both the insurer
and the employer would have their rights of conscience protected. This
was not a complicated question. It was a very straightforward question,
and frankly, the answer to the question was going to determine my vote
on this very important amendment.
Sadly, the administration once again skirted the answer. In her
response, Secretary Sebelius simply said the President ``is committed
to rulemaking to ensure access to these important preventive services
in fully insured and self-insured group health plans while further
accommodating religious organizations' beliefs.''
What does that mean, Mr. President?
I ask unanimous consent that both my letter to Secretary Sebelius and
her reply be printed in the Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Ms. COLLINS. Mr. President, this was very frustrating to me. I asked
a key question, and I could not get a straight answer. It also
demonstrates many of the problems associated with employer mandates.
I believe the sponsor of this amendment is completely sincere. I want
to make that clear. But this issue has become yet another sad example
of election-year politics. I believe a good compromise could have been
reached and should have been worked out. For example, in Maine, State
law requiring contraception coverage includes a specific exemption for
religious employers, such as churches, schools, and hospitals. Surely
we could have reached a similar accommodation. Unfortunately, what we
are left with is another example of the political pandering that has so
tested Americans' patience.
Since I could not and did not receive a straightforward answer to my
question about protecting self-insured faith-based organizations, I
feel that I have to vote for Senator Blunt's amendment, with the hope
that its scope will be further narrowed and refined as the legislative
process proceeds.
Critics of the Blunt amendment have charged that employers could use
it as an excuse to deny coverage for services simply as a means to
reduce their insurance costs. As Senator Blunt, however, has pointed
out, the amendment includes specific language to require that the
overall cost of the coverage remains the same even though an employer
excludes certain services because of their religious beliefs. As a
consequence, under this amendment, employers would have no incentive to
exclude coverage of items or services simply because of financial
considerations.
Mr. President, while I plan to support the amendment, I do so with
serious reservations because I think the amendment does have its flaws.
But when the administration cannot even assure me that self-insured
faith-based organizations' religious freedoms are protected, I feel I
have no choice.
I hope that the Senate will now be able to move forward to address
the many important and pressing issues facing our Nation such as job
creation, energy and rebuilding our nation's infrastructure.

Exhibit 1

U.S. Senate,

Washington, DC, February 24, 2012.
Hon. Kathleen Sebelius,
Secretary, Department of Health and Human Services,
Washington, DC.
Dear Secretary Sebelius: Like many Americans, I was very
concerned when, on January 20, 2012, the Department of Health
and Human Services issued a final regulation to require
religious universities, hospitals, charities and other faith-
based organizations to pay for health insurance that covers
contraceptives and sterilizations regardless of the
organization's religious objections. I believe that such a
broad mandate poses a threat to our religious freedom and
presents the Catholic church and other faith-based
organizations with an impossible choice between violating
their religious beliefs or violating federal regulations.
I was somewhat reassured when, on February 10, the
President announced an ``accommodation'' that would require
insurance companies rather than religious organizations to
provide these services. According to the White House
statement, ``religious organizations will not have to provide
contraceptive coverage or refer their employees to
organizations that provide contraception,'' and ``religious
organizations will not be required to subsidize the cost of
contraception.''
While the President has announced some changes in how the
new preventive coverage mandate will be administered, many of
the details remain unclear. A very important issue is how the
rule would treat self-insured faith-based institutions. For
example, there are many Catholic hospitals that are self-
insured, and therefore act as both the employer and the
insurer. The final rule simply states that the ``Departments
intend to develop policies to achieve the same goals for
self-insured group health plans sponsored by non-exempted,
non-profit religious organizations with religious objections
to contraceptive coverage.''
I would therefore like further specific clarification of
how self-insured faith-based organizations will be treated
under the rule to ensure that their rights of conscience are
protected.
Thank you for your prompt assistance on this important
issue.
Sincerely,
Susan M. Collins,
United States Senator.
____

The Secretary of Health

and Human Services,

Washington, DC, February 29, 2012.
Hon. Susan Collins,
U.S. Senate,
Washington, DC.
Dear Senator Collins: Thank you for your letter regarding
the August 2011 Guidelines on Women's Preventive Services. On
February 15, 2012, related final rules were published
exempting group health plans sponsored by certain religious
employers (and any associated group health insurance
coverage) from any requirement to cover contraceptive
services under section 2713 of the Public Health Service Act
and corresponding provisions in the Employee Retirement
Income Security Act and the Internal Revenue Code, and
related guidance.
As you know, in August 2011, the Health Resources and
Services Administration (HRSA) published Guidelines that
operate to require non-grandfathered health plans to cover
certain preventive services for women, including Food and
Drug Administration-approved contraceptive services, without
charging a co-pay, co-insurance, or a deductible. HRSA based
the Guidelines on recommendations from the Institute of
Medicine, which relied on independent physicians, nurses,
scientists, and other experts, as well as evidence-based
research, to formulate its recommendations. Evidence shows
the use of contraceptives has significant health benefits for
women and their families, significantly reducing health costs
for women and society.
With the Departments of Labor and the Treasury, the
Department of Health and Human Services also published in
August

[[Page S1169]]

2011 an amendment to the July 2010 Preventive Services
Interim Final Rules authorizing an exemption for certain
religious employers' health plans from any requirement to
cover contraceptive services. Twenty-eight states already
require health insurance coverage to cover contraception, and
the exemption in the amendment to the Interim Final Rules was
modeled on one adopted by some of these states. After
considering the many comments received in response to the
amendment to the Interim Final Rules, the Departments
published final rules on February 15, 2012, retaining the
exemption.
At the same time, we released guidance providing a one-year
enforcement safe harbor for group health plans sponsored by
certain nonprofit employers that, for religious reasons, do
not provide contraceptive coverage and do not qualify for the
exemption (and any associated group health insurance
coverage). Such nonprofit employers could include religious
universities, hospitals, and charities.
In his recent announcement related to these issues, the
President committed to rulemaking to ensure access to these
important preventive services in fully insured and self-
insured group health plans while further accommodating
religious organizations' beliefs. We are engaging in a
collaborative process with affected stakeholders including
religiously affiliated employers, insurers, plan
administrators, faith-based organizations, and women's
organizations as we develop policies in this area. Our
preliminary discussions with a number of religiously
affiliated employers and faith based organizations have been
very productive. And, of course, the future rulemaking
process will afford a full opportunity for public input.
The Administration remains fully committed to its
partnerships with faith-based organizations to promote
healthy communities and serve the common good.
Again, thank you for your letter. I appreciate your input
on this matter.
Sincerely,
Kathleen Sebelius.

The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. SANDERS. Mr. President, I ask unanimous consent to speak for up
to 5 minutes on the Blunt amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SANDERS. Mr. President, in Vermont and across this country, there
is growing frustration that Members of Congress--mostly men, I should
add--are trying to roll back the clock on women's reproductive rights--
in this case, the right of women to receive contraceptive services
through their insurance plan. This attack is grossly unfair, and I hope
men will stand with women in the fight to protect this very basic
right.
Let me add my strong belief that if the Senate had 83 women and 17
men rather than 83 men and 17 women, a bill such as this would never
even make it to the floor.
Two years ago Congress passed a health care reform bill that will
expand health care access for over 30 million Americans who are
uninsured as well as millions of Americans who are covered through
their employers. This bill is by no means perfect--I would go further--
but it is a step forward in allowing us to catch up with the rest of
the industrialized world that guarantees health care to all of their
people as a right.
Unfortunately, the amendment we are discussing today--Senator Blunt's
amendment--would undermine much of the progress being made for women's
health care through a new version of a so-called conscience exemption.
Not just content to attack women's rights, Mr. Blunt's amendment would
go even further and seeks to deny patients access to any essential
health care service their employer or insurance company objects to
based simply on the employer's ``religious beliefs'' and ``moral
convictions.''
This amendment would especially have an adverse impact on women's
health. Starting in August, women enrolled in new plans will have
access to a range of preventive services at no cost. But allowing the
kind of extreme, so-called conscience clause included in the Blunt
amendment would allow an employer to refuse coverage of contraceptives,
annual well-woman visits, or even treatments for both genders, such as
mental health services or HIV/AIDS treatment, based not on a doctor's
recommendation but on the religious belief or moral conviction of a
person's employer. This is an absolutely unprecedented refusal right.
The Blunt amendment must be defeated.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KERRY. Mr. President, I ask unanimous consent to speak for up to
8 minutes on the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KERRY. Mr. President, this is obviously a difficult time in our
politics--the polarization. It is a difficult time in the Senate, in
particular, because over the years this has been a place where we have
prided ourselves on really working to find ways to avoid the kind of
polarization we see today and actually to find the common denominator
on a number of sensitive issues.
I think our friend from Maine, Senator Snowe, spoke for many of us
this week when she talked about the ``my way or the highway''
approaches to partisan politics that have made it harder for people to
work with each other and actually get things done. I would never speak
for her, but I think given her diagnosis of what is wrong with the
Senate today, she has made a decision not to run for reelection. I
think the amendment we are debating today, frankly, is exhibit A.
Two years ago many of us voted to end an era where many Americans
felt that women in particular but poor people and others also were put
into a position of a second-tier status with respect to access to
health care in America. There were so many discrepancies. One example,
for instance, that was in error before the reform we passed was where
Viagra was covered for men, at no cost, by insurance companies but
contraception, which 99 percent of American women use, was not covered.
So we addressed this issue in the reform we passed, Congress sent it to
the President, and the President signed it.
The administration then took the time appropriate. Recognizing the
difficulty of implementing some of this, they allowed for a time period
in order to be able to work through the rules. When they did come out
with the first rule, I regret that they came out with a rule that many
of us felt--I felt and shared with others in America--a sense that it
was not going to work. There was a firestorm in the country over that
for a brief period of time. I spoke out in our caucus, and I said I
thought there was a better way to try to deal with that that created a
balance between the first amendment requirements and the needs of
people to be able to have access and be protected. I didn't think it
was and I don't think today it is right to force a religiously
affiliated institution to pay for contraception if it violates
fundamental religious beliefs.
I am glad to say that the administration--the White House, which I
think perhaps hadn't been able to see all of the implications of what
had happened at that point in time--quickly moved to recognize that
indeed the rule was not proposed as it ought to be, and they changed
it. They responded. That was the right decision. This week, Secretary
Sebelius made it clear they are still working with the faith community
on a final rule that will address the concerns of my church and of
other institutions which are self-insured.

But with all due respect to what the Senator from Maine, Senator
Collins, said a few minutes ago, Secretary Sebelius said publicly,
after the Senate Finance Committee hearing on this subject on the
budget, whether it is an insured plan or self-insured plan, the
employer who has a religious objection doesn't have to directly offer
or pay for contraception. So I take issue. I believe the letter the
Senator received actually addresses this question and says they are
working with the community, as I believe they ought to, in order to
come up with a means of guaranteeing that self-insurance will be
protected, as I believe it ought to be protected.
But I don't believe we ought to embrace the Blunt amendment as this
broad-based opening of Pandora's box that carries with it all kinds of
other risks and potential mischief. We don't have to do that in order
to protect the self-insured here. I think it is important to work
together with patience to try to find a way to do no harm, if you will,
to the Constitution or to the rights of women in this country to access
health care.
I believe in the spirit of the amendment that is in front of us
today. I know the Senator from Missouri acts in good faith personally,
and I respect that. But language is always important, critical in
legislating, and the language is overbroad. If there is one thing I
know after 27 years of legislating here, it is that when you are

[[Page S1170]]

writing legislation, it is critical to understand the implications of
the language you use. Precision matters. This amendment opens the
potential for overly broad and vague exceptions that could allow
children to be denied immunizations. It could allow a company--and a
company is quite different from an individual's right to protection
under the Constitution--to actually object to mental health services.
It could allow for the denial of HIV screenings because people think
somehow that is a disease that belongs to a category they object to in
terms of social life and structure in America. It would allow,
potentially, the objection of maternity care for single mothers because
people have an objection to a single mother being pregnant and having a
child.
There is all kinds of mischief that could be implemented as a
consequence of people's assertion of a belief that is not in fact
covered under the first amendment but which, as a result of the
language in this amendment, could be swept into some claim, and I don't
think we should do that. That is not good legislating. That is
dangerous.
I was interested to hear the minority leader this morning assert some
things about the first amendment. I think they are absolutely
incorrect. The first amendment is a guarantee that religious liberty
will be protected in America and that government will not institute one
religion or another or establish a religion for the Nation. It also
says no religious view will be imposed on anybody. The Blunt amendment
is, in fact, an assault on that protection of the first amendment
because it imposes one view on a whole bunch of people who don't share
that view or on those who want to choose for themselves.
The Affordable Care Act and the President's compromise and the final
rule leave all of the existing conscience clause provisions in place--
it doesn't change them at all--while adding additional protection for
churches and for religious organizations. The administration's
compromise regulation, endorsed by the Catholic Hospital Association
and other religious organizations, maintains conscience protections so
that any religious employer with objections to coverage of
contraceptive services will not be required to provide, refer, or pay
for these services. Furthermore, all churches and houses of worship are
exempt from the compromise regulation.
In fact, as the Women's Law Center pointed out:

Under current law, individuals and entities who wish to
refuse a role in abortion services are protected by three
different federal laws, the Church Amendments (42 U.S.C.
Sec. 300a 7), the Coats Amendment (42 U.S.C. Sec. 238n),
and the Weldon Amendment, which is attached to the Labor-HHS
appropriations bill each year. The health care reform law
explicitly said it would not have any effect on these laws,
meaning these were the law of the land before the health care
reform law and continue to be the law now. So, the Blunt
Amendment doesn't ``restore'' these rights because they never
went away. What could the Blunt Amendment be about, then?
Before the health care reform law, refusals happened all the
time, and that was a big part of the problem that the health
care reform law was meant to address. People were refused
coverage for things like having had a C-section or being a
cancer survivor. Insurance plans refused to provide coverage
for services, like maternity care or mental health. But to
call the refusals that happened before health care reform a
``conscience right'' is a mischaracterization. Refusals were
business as usual. They had very little, if anything, to do
with an individual's or insurance company's conscience. They
had to do with insurance companies refusing coverage for
things they didn't find profitable. And by granting a huge
loophole with its permission to refuse coverage based on
``moral considerations'' the Blunt Amendment would take us
right back there, while hiding under the guise of
``conscience rights.''

I have met with and had conversations with conscientious people in my
Church, because it is important to listen to help find answers to these
difficult questions. It has left me convinced that we don't have to
support a back-door dismantling of health care rights to protect
religious liberty. The administration's dialogue with the faith
community to reach a final accord that protects patients, including
women, and also protects religious liberty is a far better outcome than
to have the Senate rush to undercut that effort and pass something that
is overly broad, risking dangerous unintended consequences.
Mr. President, this amendment would be a mistake--for women, for
health care, for millions of Americans who don't want to go back to the
days when they could be denied care for any reason. We don't need to
drive another wedge in our politics. We need to drive towards that
common denominator, that common ground--and that is why this amendment
must be defeated.
I would simply close by saying the Senate should not rush to undercut
the protections already in place and which, ultimately, would undermine
the teachings of my church, which argues that social conscience and
values ought to be primarily established by caring for our sick, and
this would in fact deny that, to some degree.
Mr. LIEBERMAN. Mr. President, I rise today to address Senator Blunt's
amendment to the surface transportation bill, which deals with the
Obama Administration's recent proposal to require group and individual
health insurance plans, with the exception of those issued to churches
or other houses of worship, to cover contraceptive care for all women.
I believe the administration's proposal is inadequate, but I will not
support the Blunt Amendment because I believe it is too broad. I want
to discuss how this amendment came before the Senate and then I will
lay out the reasons why I will vote against it and offer a different
way forward.
The question before us deals with one of the most controversial
matters raised by the Affordable Care Act--which is finding a balance
between requiring health insurance plans to cover a core level of
benefits and respecting the religious rights and moral beliefs of those
who will be mandated to purchase these health insurance products. This
is a difficult issue because religious freedom, as enshrined in the
Bill of Rights, is literally the first of our freedoms. And the issue
of access to quality health insurance for every American is at the
cornerstone of the Affordable Care Act.
I would like to quickly review how the administration has addressed
this question in its regulations implementing the Affordable Care Act.
The ACA, as adopted by Congress, directs all health insurance plans to
cover a number of preventative care services, without cost sharing or
copays, to include some immunizations, preventive care and screenings
for children and adolescents, and with respect to women, additional
preventive care and screenings that the Secretary of Health and Human
Services has determined should include contraception and contraception
screening.
In explaining its decision to include contraceptive services within
that mandate, the administration has referenced the Institute of
Medicine's conclusion that there are significant health benefits
derived from providing women with access to contraceptive care. I agree
with the Institute of Medicine and the overwhelming majority of
Americans who believe that having access to contraceptive care is
important for women and is a right protected by U.S. Supreme Court
precedent. But then we have to ask, must the cost of contraceptive
coverage be covered by the health insurance plans of every employer?
In answering this question, we are required to address the concerns
of those who oppose the use of contraceptives based on their religious
or moral convictions. The administration provided, correctly in my
view, a total exemption from this mandate for houses of worship that
oppose the use of contraception on moral and religious grounds. But the
administration did not extend this total exemption to such church-
affiliated, non-profit organizations as hospitals, charities, and
schools.
In response to the public outcry to the original regulation, the
President amended his proposal in order to allow church-affiliated,
non-profits, such as hospitals, schools, and charities, to exclude
contraceptive coverage in the health insurance plans they provide to
their employees, but only if their insurer directly contacts each
employee covered under their health insurance plan and makes them aware
that they are eligible to obtain contraceptive coverage at no cost if
they choose to do so. In my view, this proposed compromise falls short
of protecting the values and beliefs of America's faith-based
institutions. It can and should be strengthened to give religiously
affiliated organizations the same protection

[[Page S1171]]

of their religious beliefs as the administration would give to houses
of worship.
I do not see why religious affiliated institutions like hospitals,
universities and their employees should be treated differently from
churches, synagogues and their employees. Many States, ever the
laboratories of our democracy, have already addressed this question in
a reasonable and responsible way that is different from the
administration's response. In fact, many States have established their
own mandates with regard to contraceptive coverage, and along the way
devised their own approaches to respect the balance between requiring
health insurance plans to cover a core level of benefits and respecting
the right of conscience for those who purchase or offer a private
health insurance plan to their employees.
Specifically, I believe that Connecticut's approach to this question
is one that could serve as a model of how to address this issue on a
national level.
In Connecticut, health insurance plans are required to cover
contraceptive care for all women, but the law provides a full exemption
for health insurance plans purchased and provided by churches and
church-affiliated organizations, acknowledging their unique, faith-
inspired mission and core religious values. Specifically, the law in
Connecticut states that churches and their affiliated institutions, may
be issued a health insurance policy that, ``excludes coverage for
prescription contraceptive methods which are contrary to the religious
employer's bona fide religious tenets.'' The law in Connecticut also
allows any individual beneficiary in any health insurance plan to opt
out of contraceptive coverage as long as she or he notifies their
insurance provider, ``that prescription contraceptive methods are
contrary to such individual's religious or moral beliefs.''
Unlike Connecticut's approach, Senator Blunt's amendment would
provide a broad based exemption from all mandated health insurance
benefits required by the Affordable Care Act--by allowing any business
or organization to refuse to offer any coverage to its employees that
it finds objectionable on a religious or moral basis. Such a broad
exemption could undermine the intent of Congress in mandating coverage
for such essential services as maternity care, mental health, and
immunizations.
In conclusion, the experiences of many of our States, including
Connecticut, shows that it is possible to find a better balance between
requiring health insurance companies to offer a quality health
insurance product and respecting the religious liberties of our
Nation's religious-affiliated organization than either the
administration or this amendment offers. There is a better way forward
on this important decision than the options that have been presented so
far and I hope to work with my colleagues in the Senate to develop one.
Mr. LEAHY. The Senate is considering a bipartisan bill that would
reauthorize critical infrastructure investments and that will protect
an estimated 1.8 million jobs if enacted before the end of this month.
Unfortunately, in order to move forward on this important legislation,
my friends on the other side of the aisle have demanded that we first
consider an amendment entirely unrelated to transportation or even job
creation. We have now spent the past 2 days considering a Republican
amendment that would roll back access to health care for millions of
Americans.
Access to health care for women has come under attack in recent weeks
after the Department of Health and Human Services announced it would
follow the recommendations of the nonpartisan Institute of Medicine and
require that under the Affordable Care Act, health plans must cover a
range of preventative services for women, including contraception. This
is not a novel solution. Twenty-eight States, including Vermont,
already require such coverage. The new rule will also include no-cost
preventative coverage of a range of services for women including
mammograms, prenatal screenings, cervical cancer screenings, flu shots,
and much more.
Some religious institutions were apprehensive about the policy and,
in response, the Obama administration made further accommodations to
address these concerns. The new policy strikes a reasonable balance and
is a solution that continues to recognize the obvious truth that women
have a right to affordable and comprehensive health care, just as men
do. One thing we all should agree on is that availability of birth
control has improved women's health and reduced the number of teen
pregnancies and the rates of abortion. This should be applauded.
Unfortunately, this compromise did not satisfy some who insist on
politicizing women's health. At a House Oversight and Government Reform
Committee hearing a few weeks ago, a thoughtful Georgetown law student
was prevented from testifying about her experiences because she was
deemed not ``appropriate and qualified'' to testify at the hearing by
its Republican chairman. Not surprisingly, the all-male panel failed to
raise any first-hand concern about women's health care needs. Rather
than demonizing women who speak out on behalf of the millions who use
contraception, we should be having a principled debate about access to
health care. Last year, Congress nearly shut down the government over
funding for Planned Parenthood and other title X providers. States have
recently followed suit by passing laws limiting women's access to
health care services. Our focus should be on improving access to
quality and affordable health care for all Americans, not arbitrarily
restricting important services needed by millions of women.
The Republican amendment marks just the latest overreach and
intrusion into women's health care. While this debate began as one
focused on access to birth control, the amendment has a far greater
reach and jeopardizes virtually any health care service that an
employer or insurance plan deems contrary to its undefined ``moral
conviction''--whether the employer is a religious institution or not.
For example, any plan or insurer could deny coverage of vaccinations or
HIV/AIDS treatment based on a moral or religious objection. The pending
amendment would allow any employer or insurer to refuse contraceptive
coverage, annual well-women visits, gestational diabetes screening, and
domestic violence screenings. This amendment could allow an insurance
provider to refuse coverage of health care services to an interracial
couple or single mom because of a religious or moral objection.
At the core of the Affordable Care Act was the principle that all
Americans, regardless of health history or gender, have the right to
access health care services. This amendment turns that belief around
and would take decisions out of the hands of patients and doctors and
place them with businesses and insurance plans. This serves only to put
businesses and insurance companies in the driver's seat, allowing them
to capriciously deny women coverage of health care services. The
amendment is a direct attack on women's health that would have public
health consequences for all Americans.
Today marks the first day of Women's History Month. Instead of
considering legislation that might promote women's equality such as the
Paycheck Fairness Act or the Fair Pay Act, we are being forced to vote
on the amendment that undermines the ability of women to access basic
health care. I will vote today in favor of the health of women and
against the proposed amendment. I urge my fellow Senators to do the
same.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from California is recognized.
Mrs. BOXER. Mr. President, I ask unanimous consent that I be allowed
to speak for 5 minutes, and that Senator Murray conclude our side with
5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. Mr. President, I have news for the supporters of the
Blunt amendment: We were not born yesterday. And no matter how many
times they say this is nothing more than a restatement of old laws, the
facts are not with them. We have never had a conscience clause for
insurance companies. And if you wanted to give them a chance to say no,
a lot of them don't have any conscience, so they would take it. And
this is what Blunt does. It

[[Page S1172]]

allows any insurance company that doesn't want to provide a service--
maybe an expensive service--to say, oh, I meant to tell you, I have a
moral objection to this.
What a situation. How many people have struggled with their insurance
companies to get them to cover what they have paid for for years and
years and years, only to have the insurance company say, sorry, sue us.
Now Mr. Blunt is giving insurance companies a way to say, oh, we feel
sorry that you have cancer; we are sad you have diabetes; we are torn
apart you might have a stroke, but, you know what, we have a moral
objection to the kind of therapies that are out there today, so we are
sorry.
That is what the Blunt amendment does.
Should anyone think I am making it up, let's look at the words in the
Blunt amendment. They are right here. They are right here. So the
Senator from Maine can say whatever she wants about it, the Senator
from Missouri can talk about what he wants to, but the fact is they say
if you deny any coverage from the essential health benefits package or
the preventive health package it is fine as long as you hide behind--my
words--a moral objection.
This started out with birth control. There was a hearing over in the
House, and this iconic picture will last through my lifetime and yours.
Here is a photograph of a panel discussing women's health care over in
the Republican House. A discussion on women's health care. Do you see
one woman there? I don't. They are all men. And these men are waxing
eloquent about birth control and the fact that, oh, it is just a moral
issue with them and they do not think women should have the right to
have it. Not one of them suggested men shouldn't have their Viagra, but
we will put that aside. We will put that aside.
Not one woman was called. And when a woman raised her hand in the
audience and said, I have a very important story to tell about a friend
of mine who lost her ovary because she couldn't afford birth control,
which would have controlled the size of the cyst on the ovary, you know
what Mr. Issa said over there? He said, you are not qualified. You are
not qualified to talk about women's issues. I guess only men are
qualified to talk about women's issues. We have men on the other side
of the aisle here, for the most part--with a little assist--telling
women what their rights should be.
I cannot believe this battle is on a highway bill, on a
transportation bill, where 2.8 million jobs are at stake. We have been
diverted with this amendment about women's health. Look at the
different important benefits that any insurer or any employer could
walk away from. Because if this amendment passes, they would have the
right to do so. They would no longer have to cover emergency services,
hospitalization, maternity care, mental health treatment, pediatric
services, rehabilitative services, ambulatory patient services,
laboratory services. They would no longer have to offer breast cancer
screenings, cervical cancer screenings. All they have to do is say, oh,
I am sorry, we believe prayer is the answer. We don't believe in
chemotherapy. If someone is heavy and they are obese and they get
diabetes, we have a moral objection to helping them because, you know
what, they didn't lead a clean life. So they could deny any of these
things--flu vaccines, osteoporosis screening, TB testing for children,
autism screening.
In conclusion, I urge my colleagues to vote down this dangerous
amendment. Vote it down. We will have a motion to table, and I urge my
colleagues to stand for the women and the families of this Nation and
let's get back to the highway bill. Get rid of this thing.
The PRESIDING OFFICER. The Senator's time has expired.
Mrs. BOXER. I yield the floor.
The PRESIDING OFFICER. The senior Senator from Washington State.
Mrs. MURRAY. Mr. President, I thank the Chair, and I want to thank
the Senator from California and the many Senators who have stood
proudly to fight for a woman's right to make her own health care
decisions. Certainly in this year of 2012, after decades of fighting to
make sure women have the rights and opportunities to be whoever they
want and to make their own health care choices, this vote today is an
affirmation of that, if we can beat back this Blunt amendment.
We are at a very serious time in our Nation's history. Our economy is
struggling, and though we are getting back on track, millions of
families get up every day and are concerned about whether they can
afford their mortgage or send their kids to college. I have to say, I
am sure millions of women in this country did not think they would have
to get up this morning and worry about whether contraception would be
available to them depending on who their employer was.
This is a serious issue. We have heard a lot of rhetoric about what
the Blunt amendment is. My colleague from California just described it
for us. It is terrible policy. It will allow any employer in America to
cut off any preventive care for any religious or moral reason. It would
simply give every boss in America the right to make health care
decisions for their workers and their families. It is a radical assault
on the comprehensive preventive health care coverage we have fought so
hard to make sure women and men and families across this country have.
If this amendment were to pass, employers could cut off coverage for
children's immunizations, if they object to that. They could cut off
prenatal care for children born to unmarried parents if they object to
that.
The American people are watching today. Young women are watching
today. Is the Senate a place where their voice will be heard and their
rights will be stood up for?
We have watched this assault on women's health care for more than a
year now. A year ago, almost to this very day, we were working to make
sure we kept the government open by putting together our budget
agreement. In the middle of the night, all the numbers were decided,
all the issues were decided, and we were ready to move forward within
hours to make sure our government did not shut down. What was the last
issue between us and the doors of this government closing? The funding
for Planned Parenthood.
I was the only woman in the room, and I stood with those men and I
said, no, we will not give away the funding for this over this budget.
The women of the Senate the next morning stood tall. We gathered all
our colleagues together and we fought back and we won that battle. And
those who are trying to take away the rights of women to make their own
health care choices and to have access to contraception in this country
today have been at it every day since.
We are not going to allow a panel of men in the House to make the
decisions for women about their health care choices. We are not going
to allow the Blunt amendment before us today to take away that right.
We believe this is an important day. In fact, this happens to be March
1, the beginning of Women's History Month in this country. Let us stand
tall today in this moment of history and say the United States Senate
will not allow women's health care choices to be taken away from them.
I urge my colleagues to vote with us to table the Blunt amendment and
to tell women in this country everywhere that we stand with them in the
privacy of their own homes to make their own health care choices.
Mrs. MURRAY. Mr. President, has all time expired?
The PRESIDING OFFICER. All time has expired.
Mrs. MURRAY. I move to table the Blunt amendment.
I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is on agreeing to the motion.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. KYL. The following Senator is necessarily absent: the Senator
from Illinois (Mr. Kirk).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 51, nays 48, as follows:

[[Page S1173]]

[Rollcall Vote No. 24 Leg.]

YEAS--51

Akaka
Baucus
Begich
Bennet
Bingaman
Blumenthal
Boxer
Brown (OH)
Cantwell
Cardin
Carper
Conrad
Coons
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Inouye
Johnson (SD)
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
McCaskill
Menendez
Merkley
Mikulski
Murray
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Snowe
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Webb
Whitehouse
Wyden

NAYS--48

Alexander
Ayotte
Barrasso
Blunt
Boozman
Brown (MA)
Burr
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
DeMint
Enzi
Graham
Grassley
Hatch
Heller
Hoeven
Hutchison
Inhofe
Isakson
Johanns
Johnson (WI)
Kyl
Lee
Lugar
Manchin
McCain
McConnell
Moran
Murkowski
Nelson (NE)
Paul
Portman
Risch
Roberts
Rubio
Sessions
Shelby
Thune
Toomey
Vitter
Wicker

NOT VOTING--1

Kirk

The motion was agreed to.
Mrs. MURRAY. Mr. President, I move to reconsider the vote.
Mrs. BOXER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The majority leader is recognized.

____________________