The Supreme Court on Wednesday heard arguments in the Trump administration’s attempt to allow more employers to refuse to provide insurance coverage for birth control for female employees because of religious or moral objections.
The case is the latest dispute over the expansion of health-care benefits for women under the Affordable Care Act and pits questions of religious liberty against a woman’s right to equal health-care access. It was the third time the high court considered the contraceptive coverage requirement but the first since Neil Gorsuch and Brett Kavanaugh joined the bench.
The Trump administration in 2018 expanded the types of organizations that could opt out of providing cost-free access to birth control and allowed exemptions based on moral as well as religious objections.
The Obama administration had narrower exceptions for churches and other houses of worship and created a system of “accommodations” or workarounds for religiously affiliated organizations such as hospitals and universities to avoid directly covering the cost of birth control.
Kavanaugh acknowledged the “very strong interests on both sides,” but suggested it was up to each administration to use its discretion in the absence of specific limits imposed by Congress.
“Why isn’t this a reasonable way to balance this?” he asked the attorney representing the state of Pennsylvania, which is challenging the rules.
Chief Deputy Attorney General Michael Fischer said in response that the rules go well-beyond what Congress envisioned by exempting organizations that had no problem complying with the accommodation provision. The rules provide “a grant of authority so broad” that any employer could “opt out entirely, including for reasons as amorphous as vaguely defined moral beliefs,” he told the court.
Wednesday marked the third consecutive day the high court held arguments by conference call because of the coronavirus pandemic. Justice Ruth Bader Ginsburg participated from Johns Hopkins Hospital in Maryland, where she is recovering from treatment of a gallbladder condition.
Among the issues before the justices is to what extent the government should create exemptions for religious groups and nonreligious employers that say involvement in such coverage makes them complicit in acts that violate their faith.
If the new rules take effect, the government has said between 70,500 and 126,400 women would lose access to cost-free birth control in one year.
Ginsburg and Justice Sonia Sotomayor expressed concerns about the possibility that tens of thousands of women could be left without no-cost access to birth control.
“You have just tossed entirely to the wind what Congress thought was essential,” Ginsburg said, “that women be provided these services with no hassle, no cost to them.”
Solicitor General Noel Francisco disagreed, telling the court that no part of the Affordable Care Act specifically requires contraceptive coverage, but instead allows the administration to “decide whether or not to cover it in the first place.”
Under the new rules, the employers able to opt out include essentially all nongovernmental workplaces, from small businesses to Fortune 500 companies. And the employer has the choice of whether to permit the workaround, which some organizations said made them complicit in providing contraception.
Pennsylvania and New Jersey challenged the Trump administration rules, noting that when women lose coverage from their employers, they seek state-funded programs and services.
Last summer, a unanimous panel of the U.S. Court of Appeals for the 3rd Circuit blocked the rules from taking effect nationwide. The court said the administration probably lacked authority to issue such broad exemptions and did not comply with requirements to provide notice and allow public comment on the rules.
In its opinion, the 3rd Circuit noted that cost is a significant barrier to contraceptive use and access and that after the health-care law ensured free access, women switched to the more effective and expensive methods of contraception.
Nearly 63 million U.S. women in 2018 had insurance coverage for birth control without out-of-pocket fees — about 7 million more than federal estimates from 2015, according to the National Women’s Law Center.
In addition to the Trump administration, a charity called Little Sisters of the Poor is defending the rules. The order of nuns, which runs homes for older people, points out that the government provided exemptions from the beginning for religious organizations such as churches. They say the accommodation provision violates the 1993 Religious Freedom Restoration Act, the law that says the government must have a compelling reason for programs that substantially burden religious beliefs.
For some groups, providing any birth control would violate their religious faith; others object only to contraceptives that work after an egg has been fertilized, such as the “morning-after pill” and intrauterine devices.
In 2014, a divided court ruled in Burwell v. Hobby Lobby that certain closely held businesses do not have to offer birth control coverage that conflicts with the owners’ religious beliefs. Justice Samuel Alito Jr., writing for the court’s five conservatives, said that the Religious Freedom Restoration Act protected two family-owned companies. But the court did not take a position on the accommodation provision, which requires objecting organizations to notify the government.
Two years later, a shorthanded court of eight justices declined to rule on the merits of another challenge to the contraceptive-coverage requirement and sent the case back to the lower courts. The unusual, unsigned decision was viewed as a punt by the court then equally divided along ideological lines.
Since then, President Donald Trump’s two high-court nominees, Gorsuch and Kavanaugh, have replaced Justices Antonin Scalia and Anthony Kennedy.
The combined cases are Trump v. Pennsylvania and Little Sisters of the Poor v. Pennsylvania.
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The Washington Post’s Robert Barnes contributed to this report.