[Congressional Record Volume 160, Number 111 (Wednesday, July 16, 2014)]
[Senate]
[Pages S4514-S4517]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


         Protect Women's Health from Corporate Interference Act

  Mrs. SHAHEEN. Mr. President, I am here today to express my concerns 
with the Supreme Court's recent decision in the Hobby Lobby case and 
the steps we are taking--hopefully, this week--to protect a woman's 
right to make her own health care decisions. I want to thank Senators 
Murray and Udall for their leadership on this issue and for introducing 
the Not My Boss's Business Act.
  I appreciate hearing from the Republican leader about their interest 
in supporting women's access to contraceptive care, and I hope that is 
something we can all agree on. But the issue here is not just access to 
that care, it is the cost of that care. When you charge women more for 
contraceptive coverage, then you are denying them access to that care.
  The legislation that has been introduced by Senators Murray and 
Udall, and of which I am a cosponsor, will prevent employers from being 
involved in an employee's health care decisions and it will reverse the 
Supreme Court's decision.
  Throughout my career in office, I have fought to ensure that women 
have access to important contraceptive services and that women are able 
to make their own decisions about their health care with their doctors 
and with their families.
  In 1999, when I was Governor of New Hampshire, I signed into law a 
bipartisan bill that required insurance companies to cover prescription 
contraceptives--the issue we are debating right now. I signed that law 
with strong bipartisan support because both Republicans and Democrats 
knew it was the right thing to do. In fact, that legislation passed in 
the New Hampshire House with 121 Democratic votes and 120 Republican 
votes and 2 Independents.
  That law, passed in 1999, has now provided thousands of New Hampshire 
women with the ability to access the medications they and their doctors 
decide are right for them because they have that insurance coverage to 
pay for those medications. The Affordable Care Act also established 
that women would have access to prescription contraceptive services 
with no copays, just as New Hampshire did in 1999.
  Do you know what is interesting? We are having this debate about 
religious objections. Back in 1999 the legislature appointed a 
committee to look at whether there were any religious concerns about 
what we had done. They came back and reported that this was not an 
issue.
  A recent analysis by the Department of Health and Human Services 
reports that because of the Affordable Care Act, more than 30 million 
women are now eligible to receive preventive health services, including 
contraception, with no copays. In fact, since 2013 women have saved 
nearly $500 million in out-of-pocket costs because of the ACA's 
requirement to cover contraceptive care.
  The Supreme Court's decision has a real financial bearing on women 
and their families throughout the country because this ruling will have 
a profound impact on the health and economic security of women 
throughout this Nation. As noted by Justice Ginsburg in her dissent in 
the Hobby Lobby case, when high cost is a factor, women are more likely 
to decide not to pursue certain forms of health care treatments that 
involve contraceptive care.
  There are many reasons why a doctor may decide to prescribe 
contraceptives for a woman's health care needs. Contraceptives can be 
used to treat a broad range of medical issues--hair loss, 
endometriosis, acne, irregular menstrual cycles. Contraceptives have 
also been shown to reduce the risk of certain cancers. But just a few 
weeks ago the Supreme Court jeopardized that access to affordable 
preventive health care for too many women. As a result of the Hobby 
Lobby case, some employers now have the ability to claim religious 
objections as a justification for not providing contraceptive health 
care with no copay.
  I understand the host of issues employers face on a daily basis. I 
appreciate the complexity they face when they decide to offer health 
insurance coverage to their employees. For example, take Jane Valliere, 
who owns Hermanos Mexican restaurant in Concord, NH. I recently had the 
opportunity to sit down with Jane and to discuss the Hobby Lobby case. 
Jane made it clear that while she has many choices and decisions to 
make on a daily basis to keep her business running, she never expected 
to be put in a position where she could be responsible for making a 
health care decision for her employees at the restaurant.
  Like Jane, I do not think it makes sense for employers to make those 
personal, private health care decisions for their employees. Critical 
health decisions are simply not an employer's business. Where a woman 
works should not determine whether she gets insurance coverage that has 
been guaranteed to her under Federal law.
  While we do not yet know the full extent of the impact from this 
ruling, we do know the Supreme Court's decision turns back progress 
women across the country have fought for years to achieve.
  We must ensure that women have access to the health care services and 
medications they need. That means making them affordable, that they are 
able to make their own decisions about their care with their doctors 
and their families.
  Thankfully, we have an opportunity this week to correct the Supreme 
Court's shortsighted decision. This week the Senate can stand for women 
and pass the Not My Boss's Business Act. A woman's health care decision 
should be made with her doctor, with her family, with her faith, not by 
her employer and with her employer's faith. I urge my colleagues to 
support this bill.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Iowa.
  Mr. GRASSLEY. Mr. President, later we will be voting on a judge for 
the Eastern District of Missouri. I come to the Senate floor today to 
explain why, regrettably, I am unable to support the nominee.
  As my colleagues know, Justice Ronnie White was originally nominated 
by President Clinton during the 105th Congress. This body voted on and 
rejected his nomination in 1999. After careful consideration of his 
record, I voted against Justice White's nomination at that time. Since 
1999, Justice White completed a term as chief justice of the Missouri 
Supreme Court and has returned to private practice. So today I would 
like to revisit a few aspects of Justice White's legal and judicial 
career that first led me to vote against his nomination. I will also 
discuss developments since 1999. Unfortunately, his record since that 
time has only reinforced my concerns.
  First, I begin with some troubling aspects of Justice White's record 
during his days on the Missouri Supreme Court in the 1990s. I only need 
to point to a few cases to illustrate my concerns.
  In the 1998 Johnson case, Justice White was the sole dissenter on the 
State's high court. It was a capital appeal case involving a claim of 
ineffective assistance of counsel. The case was heartbreaking. The 
defendant shot four people to death--three Missouri sheriffs and one of 
the sheriffs' wives. The facts were stark and very clear-cut. This was 
not a close case.
  The defendant was convicted based upon the overwhelming evidence of 
his guilt. Justice White conceded there was more than sufficient 
evidence to sustain the conviction on appeal, but he went out of his 
way to create a standard that was not based on Missouri law when he 
evaluated the conduct of the defense attorney. Unsurprisingly, not a 
single member of the State court agreed with Justice White's dissenting 
opinion. That is because it was obvious there was no reasonable 
probability that anything the defense attorney did would have

[[Page S4517]]

changed the outcome of the trial. That is the applicable legal 
standard. It is straightforward--very straightforward. In that case, 
every member of the State supreme court applied it correctly, except 
Justice White.
  Unfortunately, Justice White's dissent in that case was not an 
isolated example. On a number of other occasions throughout his 
judicial career, Justice White misapplied standards of review or 
considered issues that were not germane to the law when he was deciding 
cases. Justice White has even admitted as much. Discussing his judicial 
philosophy, he said in 2005 that he thinks it is appropriate for judges 
to let their opinions be ``shaped by their own life experiences.'' I 
think the personal characteristics of any judge--what this nominee 
calls his ``own life experiences''--should play absolutely no role 
whatsoever in the process of judicial decisionmaking. I know my 
colleagues on our Judiciary Committee share that view as well.
  Let me get back to the nominee's judicial track record. Justice White 
was the sole dissenter in another case that the Missouri Supreme Court 
decided in 1997. That case raised the question of whether the defendant 
was entitled to an additional evidentiary hearing. In his dissent, 
joined by none of his colleagues, Justice White again ignored a 
straightforward standard of review and wrote that the defendant should 
have the hearing because Justice White thought it would cause ``little 
harm.'' Here again we see Justice White's personal preferences creeping 
into what should be objective, law-based decisionmaking--something 
pretty elementary to being a judge at any level, Federal or State, in 
our system of jurisprudence.
  Those are just two examples of what led me, after consideration of 
the nominee's record as a whole, to vote against his nomination in 
1999.
  Unfortunately, my concerns about Justice White's first nomination 
have only been reaffirmed by his subsequent record. For instance, I am 
troubled by Justice White's concurrence in the Eighth Amendment case of 
Roper v. Simmons. That case was first heard by the Missouri Supreme 
Court, was appealed to the Supreme Court, and was eventually affirmed. 
But the affirmance is not what my colleagues should focus on. What 
should concern my colleagues is the opinion that Justice White 
concurred in, which ignored binding Supreme Court precedent. That 
precedent was the Stanford v. Kentucky case. I will explain.
  In 2003, when Justice White's court decided Roper, binding Supreme 
Court precedent at that time permitted applying the death penalty to 
individuals if they committed their crimes when they were under 18. 
Nonetheless, Justice White concurred in the State court opinion that 
simply ignored that precedent. Justice White concurred even though the 
Supreme Court had reaffirmed the Stanford principle twice in 2002, the 
year before Justice White's state court decision.
  Moreover, in 2003 the Supreme Court rejected an appeal raising legal 
arguments that were identical to the ones Justice White endorsed. That 
is the very same year Justice White's court ruled in Roper and ignored 
Stanford outright.
  My colleagues on our Judiciary Committee often ask nominees about 
their commitment to Supreme Court precedent and their faithfulness to 
the doctrine of stare decisis. Nominees who appear before us routinely 
repeat the mantra that they will unfailingly apply precedent and 
nothing else--in other words, leave out personal views. Justice White 
did as much at his hearing as well. But--and this is what I find so 
troubling--when I asked him about the Stanford case, he admitted that 
Stanford was, in fact, binding on his state court at the time he 
concurred in Roper. What he did not explain--what he could not 
explain--was why he ignored that binding precedent as a State supreme 
court justice. He could not explain why he thought it was appropriate 
for him to concur in a State court opinion that, in effect, overruled 
U.S. Supreme Court precedent.
  I do not doubt that Justice White has always done what he thought was 
right and that he ruled the way he thought best to achieve justice for 
the litigants before him. But in my view that is not an appropriate 
role for a Federal district judge. Judicial decisionmaking requires a 
disinterested and objective approach that never takes into account the 
judge's life experiences or policy preferences. From the careful look I 
have taken at Justice White's 13-year track record as a judge, I have 
too many questions about his ability to keep his personal 
considerations separate from his judicial opinions.
  Finally, it is worth noting that there continues to be opposition to 
this nominee from law enforcement.
  Specifically, both the National Sheriffs' Association and the 
Missouri Sheriffs' Association oppose this nominee.
  I always try to give judicial nominees the benefit of doubt when I 
have questions about their records, but in this nominee's case, I 
simply can't ignore so many indications that the nominee isn't the 
right person to occupy a lifetime appointment to the Federal bench.
  I sincerely hope I am wrong about Justice White, and I reluctantly 
vote no on the nominee.
  I ask unanimous consent to have printed in the Record a letter from 
Missouri Sheriffs' Association Training Academy and National Sheriffs' 
Association.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[From the Missouri Sheriffs' Association and Training Academy, May 10, 
                                 2014]

Missouri Sheriffs' Association Opposes Confirmation of Ronnie L. White 
                          to the Federal Bench

       On behalf of the 115 Sheriffs in the State of Missouri, the 
     Missouri Sheriffs' Association vehemently opposes the 
     confirmation of Ronnie L. White to the federal bench.
       Victims of crime, families of victims and law enforcement 
     deserve a better federal judge than Ronnie L. White. As we 
     explained to Senators Blunt and McCaskill last year, Ronnie 
     L. White proved himself an activist judge who sought 
     protection for criminals from punishment given to them by a 
     jury even in cases where criminals performed unforgiveable 
     acts of violence against our fellow citizens and law 
     enforcement.
       Ronnie L. White's actions and beliefs doomed his 
     confirmation in 1999. In 1999, fifty four Senators knew 
     Ronnie L. White was not the right person for the job based on 
     the merits of his decisions on the bench. Nothing has changed 
     since 1999 warranting Ronnie L. White's confirmation this 
     year.
       Senators who want to protect our citizenry from activist 
     judges like Ronnie L. White should vote against confirmation 
     just as was done in 1999.
                                  ____



                               National Sheriffs' Association,

                                    Alexandria, VA, April 2, 2014.
     Hon. Claire McCaskill,
     U.S. Senate,
     Washington, DC.
     Hon. Roy Blunt,
     U.S. Senate,
     Washington, DC.
       Dear Senator McCaskill and Senator Blunt: I write on behalf 
     of the National Sheriffs' Association (NSA) and the more than 
     3,000 elected Sheriffs nationwide to express our support for 
     the efforts of the Missouri Sheriffs' Association to prevent 
     the nomination of Ronnie L. White to a federal judgeship in 
     St. Louis. The Missouri Sheriffs' Association was outspoken 
     in its opposition to Judge White's previous nomination by 
     President Bill Clinton and continues to be outspoken against 
     any further consideration to the federal courts. I 
     respectfully request that, as you examine candidates for the 
     federal judgeship in St. Louis, you carefully consider the 
     concerns presented by the Missouri Sheriffs' Association 
     regarding any judicial nomination of Ronnie L. White.
           Respectfully yours,
                                                 Michael Leidholt,
                                            Sheriff NSA President.

  Mr. GRASSLEY. I yield the floor.
  The ACTING PRESIDENT pro tempore. The Republican whip.