WASHINGTON — The Supreme Court agreed Friday to decide whether the Trump administration may allow employers to limit women’s access to free birth control under the Affordable Care Act.
The case returns the court to a key battleground in the culture wars, but one in which successive administrations have switched sides.
In the Obama years, the court heard two cases on whether religious groups could refuse to comply with regulations requiring contraceptive coverage. The new case presents the opposite question: Can the Trump administration allow all sorts of employers with religious or moral objections to contraception to opt out of the coverage requirement?
Brigitte Amiri, a lawyer with the American Civil Liberties Union’s Reproductive Freedom Project, said the Trump administration’s approach was unlawful.
“Allowing employers and universities to use their religious beliefs to block employees’ and students’ birth-control coverage isn’t religious liberty — it’s discrimination,” she said in a statement. “The Trump administration’s attempt to take away people’s insurance coverage for contraception is one of the administration’s many attacks on access to abortion and contraception.”
Marjorie Dannenfelser, the president of the Susan B. Anthony List, an anti-abortion group, said by way of example that the Little Sisters of the Poor, an order of nuns who had intervened in the case, should not be forced to provide coverage at odds with its members’ faith.
“The Little Sisters of the Poor simply want to carry out their mission of love for the elderly, peaceably and in accordance with their deeply-held beliefs,” Dannenfelser said in a statement. “Instead they have been threatened with crushing fines and repeatedly dragged to court to defend themselves. President Trump took strong steps to put this nonsense to an end and his administration’s rule should be upheld.”
In March 2010, President Barack Obama signed the Affordable Care Act, which includes a section that requires coverage of preventive health services and screenings for women. The next year, the Obama administration required employers and insurers to provide women with coverage at no cost for all methods of contraception approved by the Food and Drug Administration.
Houses of worship, including churches, temples and mosques, were exempt from the requirement. But nonprofit groups like schools and hospitals affiliated with religious organizations were not.
Some of those groups objected to providing coverage for any of the approved forms of contraception. Others objected to contraception they said was tantamount to abortion, though there are substantial questions about whether that characterization was correct as a matter of science.
The Trump administration took the side of the religious employers, saying that requiring contraception coverage can impose a “substantial burden” on the exercise of religion. The regulations it has promulgated made good on a campaign pledge by Donald Trump, who has said that employers should not be “bullied by the federal government because of their religious beliefs.”
The new regulations also included an exception for employers “with sincerely held moral convictions opposed to coverage of some or all contraceptive or sterilization methods.”
The states of Pennsylvania and New Jersey challenged the rules, saying they would have to shoulder much of the cost of providing contraceptives to women who lost coverage under the Trump administration’s rules.
In May, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals, in Philadelphia, blocked the regulations, issuing a nationwide preliminary injunction. Making exceptions to the requirement that employers provide women with coverage of contraception at no cost would have a large practical effect, Judge Patty Shwartz wrote for the panel. Citing government data, she wrote that about 70,000 to 126,000 women would lose contraceptive coverage if their employers could invoke the religious exemption.
That, in turn, she wrote, would disproportionately affect access to contraception for poor women.
“Cost is a significant barrier to contraceptive use and access,” she wrote. “The most effective forms of contraceptives are the most expensive. After the ACA removed cost barriers, women switched to the more effective and expensive methods of contraception.”
The coverage requirement, sometimes called the contraceptive mandate, has been the subject of much litigation, reaching the Supreme Court twice.
In 2014, in Burwell v. Hobby Lobby Stores, the court ruled that requiring family-owned corporations to pay for insurance coverage for contraception violated a federal law protecting religious liberty. The law, the Religious Freedom Restoration Act of 1993, says that government requirements placing a substantial burden on religious practices are subject to an exceptionally demanding form of judicial scrutiny.
Justice Samuel Alito, writing for the majority, said there was a better alternative, one that the government had offered to nonprofit groups with religious objections.
That accommodation allowed the groups not to pay for coverage and to avoid fines if they informed their insurers, plan administrators or the government that they wanted an exemption. Insurance companies or the government would then pay for the coverage.
Many religious groups around the nation challenged the accommodation, saying that objecting and providing the required information would make them complicit in conduct that violated their faith. An eight-member court considered that objection in 2016 in Zubik v. Burwell but was unable to reach a definitive ruling and instead returned the case to the lower courts, instructing them to consider whether a compromise could be reached.
When the Zubik case was argued, the justices were sharply divided over the requirement to provide contraception coverage.
Justice Sonia Sotomayor said it was important to make obtaining coverage easy.
“When contraceptives are provided to women in a seamless way,” she said, “the number of unintended pregnancies dramatically falls, as does the number of abortions.”
But Justice Anthony Kennedy, who retired in 2018, said religious groups should not be forced into “subsidizing conduct that they deemed immoral.”
In urging the Supreme Court to hear its appeal in the new case, Trump v. Pennsylvania, No. 19-454, the administration said the new exceptions were authorized by the health care law and required by the Religious Freedom Restoration Act.
Lawyers for Pennsylvania and New Jersey responded that the administration lacked statutory authority to issue the regulations and had not followed proper administrative procedures.
The court also agreed to hear a second appeal, from an order of nuns. That case, Little Sisters of the Poor v. Pennsylvania, No. 19-431, and the Trump administration’s case, will be consolidated for a single hour of argument and will probably be heard in April.
The second case presents the separate issue of whether the nuns have standing to appeal. The 3rd Circuit ruled that they did not because a separate court order allowed them to decline to provide contraception coverage to their workers.