Justices Allow Limited Access to Free Birth Control Under ACA

July 8, 2020 by Dan McCue
Tom Alexander holds a cross as he prays prior to rulings outside the Supreme Court on Capitol Hill in Washington, Wednesday, July 8, 2020. The Supreme Court is siding with two Catholic schools in a ruling that underscores that certain employees of religious schools, hospitals and social service centers can’t sue for employment discrimination.(AP Photo/Patrick Semansky)

WASHINGTON – The Supreme Court on Wednesday upheld a Trump administration regulation that lets employers with religious objections limit women’s access to free birth control under the Affordable Care Act.

The 7-2 decision could have a profound, immediate effect on as many as 126,000 women who stand to lose contraceptive coverage from their employers, according to at least one government estimate.

The Affordable Care Act, which President Barack Obama signed into law in March 2010, has a provision that requires employers to cover preventive health services and screenings.

The next year as legislation implementing the ACA went into effect, the Obama administration went a step further, requiring employers and insurers to provide women with coverage at no cost to 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.

Challenges to the rules and the scope of exemptions reached the Supreme Court twice during Obama’s presidency.

In 2014, in Burwell v. Hobby Lobby Stores, the justices ruled that requiring family-owned corporations to pay for insurance coverage for contraception violated a federal law protecting religious liberty.

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.

But many religious groups challenged the accommodation on the grounds that even providing the required information would make them complicit in conduct that violated their faith.

The resulting case, Zubik v. Burwell, was heard in 2016, after the death of Justice Antonin Scalia, but the remaining eight justices were unable to make a conclusive ruling and returned the case to the lower courts.

The case decided Wednesday, Little Sisters of the Poor, et al. v. Pennsylvania, et al., was a challenge to new rules issued by the Trump administration in 2017 that expanded the exemption to the ACA’s birth-control mandate to allow private employers with religious or moral objections to the mandate to opt out of providing coverage.

According to the Trump administration, requiring religious employers to provide contraception coverage imposes a substantial burden on the free exercise of religion.

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, arguing they would now have to shoulder much of the cost of providing contraceptives to women who lost coverage under the Trump administration’s rules.

Last year, the 3rd U.S. Circuit Court of Appeals, in Philadelphia, blocked the regulations, issuing a nationwide preliminary injunction.

Writing for the unanimous three-judge panel, U.S. Circuit Judge Patty Shwartz, said, among other things, the Trump rule 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 A.C.A. removed cost barriers, women switched to the more effective and expensive methods of contraception.”

But Justice Clarence Thomas, who wrote the majority opinion announced Wednesday, said “the plain language of the statute clearly allows the departments to create the preventive care standards as well as the religious and moral exemptions.”

Later, referring specifically to the Little Sisters of the Poor, Thomas said, They — like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision– have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.

“After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate,” Thomas concluded.

Thomas’ opinion was joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh.

Justice Elena Kagan wrote separately to explain her vote with the majority, and was joined by Justice Stephen Breyer.

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

In his concurrence, Alito said that he would have found that the 1993 Religious Freedom Restoration Act required the exemptions, noting that by failing to do so, the majority left room for continued challenges.

The Act prohibits the government from substantially burdening religious exercise unless it can show that it is using the “least restrictive means” to further a compelling government interest.

Alito’s concurrence was joined by Gorsuch.

“We now send these cases back to the lower courts, where the Commonwealth of Pennsylvania and the State of New Jersey are all but certain to pursue their argument that the current rule is flawed on yet another ground,” he wrote. “This will prolong the legal battle in which the Little Sisters have now been engaged for seven years — even though during all this time no employee of the Little Sisters has come forward with an objection to the Little Sisters’ conduct.”

Kagan, joined by Breyer, wrote that she also foresaw additional litigation — and that it was quite possible that the administration would lose.

Kagan suggested the breadth of the accommodation offered by the Trump administration likely does run afoul of the Administrative Procedures Act, and that challenges on that ground could lead to the accommodation eventually being tossed in a future case.

“I question whether the exemptions can survive administrative law’s demand for reasoned decision making,” Kagan wrote. “That issue remains open for the lower courts to address.”

Kagan wrote that, on that front, the exemptions “give every appearance of coming up short.”

The application of the exemptions to publicly traded companies and to “those without any religious need for it” also raised questions about whether they were reasonable, she said.

Justice Ginsburg, joined by Justice Sotomayor in dissent, wrote that in the past, the court had “taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs.”

“Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree,” Ginsburg wrote.

House Speaker Nancy Pelosi responded to the ruling by calling it “a fundamental misreading of the statute.” 

“The Affordable Care Act was explicitly designed to prevent discrimination against women and to ensure that women have access to preventive care, including contraception,” the speaker said.

“It is unconscionable that, in the middle of the worst global pandemic in modern history, the administration is focusing on denying basic health care to women that is essential for their health and financial security, instead of protecting lives and livelihoods,” she continued, vowing “the Democratic House will continue to fight to uphold and strengthen the ACA and just last week, passed the Patient Protection and Affordable Care Enhancement Act to further lower health care costs and strengthen coverage.”

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