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The Supreme Court Made It Easier For Employers To Deny Insurance Coverage For Birth Control

The decision watered down the Affordable Care Act's "contraceptive mandate," allowing employers and universities to opt out of providing health insurance coverage for contraception for religious or moral reasons.

Last updated on July 8, 2020, at 1:23 p.m. ET

Posted on July 8, 2020, at 10:35 a.m. ET

Mychele Daniau / Getty Images

The Supreme Court sided with the Trump administration Wednesday, granting businesses and universities the ability to refuse to provide birth control coverage for their employees for religious or moral reasons.

The decision pertains to two cases — which the Supreme Court combined and heard together over video chat in May — Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania.

Both cases concern an Obama administration–era requirement under the Affordable Care Act which mandated that all employers in the US provide their employees with insurance coverage for contraception, or apply for an exemption that would enable their employees to get insurance coverage through another entity.

Religious organizations, like the Catholic charity organization Little Sisters of the Poor — one of the plaintiffs in the cases decided Wednesday — argued that filling out a form to get the exemption was a violation of their “freedom of conscience,” as they were still participating in enabling their employees to get contraception, which they are religiously opposed to.

The case was decided 5–2–2, with Justices Elena Kagan and Stephen Breyer departing from their more liberal colleagues and writing concurring opinions.

In his opinion on behalf of the Supreme Court's majority, Justice Clarence Thomas wrote:

"We hold that the Departments had the authority to provide exemptions from
the regulatory contraceptive requirements for employers with religious and conscientious objections."

Thomas also noted that "contraceptive mandate" has existed for approximately nine years and "litigation surrounding that requirement has lasted nearly as long."

In their dissent, Justices Ruth Bader Ginsburg and Sonia Sotomayor wrote that Wednesday’s decision "casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree." The decision “leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets."

They wrote that, under the Trump administration’s own estimate, this decision will cause between 70,500 and 126,400 people “to immediately lose access to no-cost contraceptive services.”

In 2017, the Trump administration passed two rules attempting to accommodate organizations that oppose contraception, allowing any organization with moral or religious opposition to providing contraception to opt out entirely. The rules were quickly blocked in the courts, so in 2018, the administration issued second versions of the rules, which had essentially the same effect but with different language.

Opponents of the rules, led by the state of Pennsylvania, took the administration to court, arguing that Trump’s rules were too broad and could allow any employer to deny birth control coverage to its employees. They especially took issue with the “moral” exemption, arguing that morality is not easily enough defined to qualify as a reason for being exempt from the contraception coverage requirement.

Justices Kagan and Breyer wrote a joint opinion in which they concurred with the judgment of the court, “but for different reasons than the court gives,” Kagan wrote. She also suggested that despite Wednesday’s ruling, the case may not be over.

On behalf of Breyer, Kagan wrote that she does not think the statute gives clear directive on whether or not the ACA gives any directive on who can decide what coverage is provided to employees, despite both the majority opinion and the dissent seeming entirely sure that they are right.

“Sometimes when I squint, I read the law as giving the [Department of Health] discretion over all coverage issues: The agency gets to decide who needs to provide what services to women,” Kagan wrote, adding that at other times, she does not.

Because of this ambiguity, Kagan and Breyer interpreted precedent as dictating that they have to agree to a “reasonable interpretation by the implementing agency,” in this case the Trump Health Department’s Health Resources and Services Administration (HRSA).

However, Kagan noted, she and Breyer believe that the birth control exemptions may not survive further legal review.

“I also write separately because I question whether the exemptions can survive administrative law’s demand for reasoned decisionmaking,” she continued. “That issue remains open for the lower courts to address.”

What Kagan is referring to here is complex. The chief argument in the case concerned the religious freedom of groups like Little Sisters of the Poor, but another central argument was about whether the Trump administration violated the Administrative Procedures Act, which governs how administrations release new rules, with the way Trump enacted the birth control exemption.

Opponents of the Trump rules argued that they were “arbitrary and capricious” and outside HRSA’s authority to enact. In Thomas’s opinion, he stated that the Trump administration was not in violation of the APA, but Kagan countered that this question needs to go back to the lower courts, who did not reach a decision on that aspect of the case.

Kagan argued that the new exemption greatly expands who the rules could affect and that the Trump administration did not consider this expansion enough before enacting it. She also questioned the “moral exemption” created by the Trump administration, writing, “The Departments’ contrary decision to extend the exemption to those without any religious need for it yielded all costs and no benefits.”

“A careful agency would have weighed anew, in this different context, the benefits of exempting more employers from the mandate against the harms of depriving more women of contraceptive coverage,” she wrote. “In the absence of such a reassessment, it seems a close call whether the moral exemption can survive” when considered again by lower courts.

Pennsylvania Attorney General Josh Shapiro, who led one of the two cases considered by the Supreme Court Wednesday, said in a statement that he planned to return the case to the lower courts in the hopes it will be overturned there.

"While I am disappointed with much of the majority opinion, I am pleased the Court allowed our challenge to the Administration’s overly broad rules to proceed," Shapiro's statement said. "We now return to the lower courts to address whether the exemptions are arbitrary and capricious. This fight is not over."

The ACA’s “contraception mandate,” as it is often referred to in court arguments, has been challenged repeatedly in court since it was first implemented in 2012. In fact, it has come before the Supreme Court before.

In 2016 the court heard Zubik v. Burwell, a case in which religious organizations argued that the contraceptive mandate violated their religious freedoms. The Supreme Court did not expressly rule on the mandate in this case, but instead vacated all prior decisions in the lower courts and instructed the parties in the case to “clarify and refine” the rules so that they still applied to most employers, but did not infringe on the religious rights of the objecting groups.

Since then, most attempts to alter the rules have ended up back in court.

The Supreme Court decided another case pertaining to reproductive rights in late June called June Medical Services v. Russo. In that case, the court came down on the side of abortion rights organizations, ruling that a Louisiana law that required physicians performing abortions at clinics to have admitting privileges at a nearby hospital was unconstitutional.

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