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Justices Appear Divided Over ‘Obamacare’ Birth Control Mandate

The U.S. Supreme Court. (Photo by Dan McCue)

WASHINGTON — The Supreme Court appeared to be divided Wednesday over the future of a pair of Trump administration rules that allow employers who cite a religious or moral objection to opt out of providing no-cost birth control to women required by the Affordable Care Act.

The law, President Barack Obama’s signature legislative achievement, requires most health plans cover birth control at no cost to patients.

It created an exemption for churches, synagogues and mosques from the contraceptive coverage requirement, and also allowed other religiously affiliated organizations including hospitals, universities and charities to “opt out” of paying for contraception, though women on their health plans would still get no-cost birth control.

Among the issues raised by the plaintiffs in the underlying cases is that they believe being forced to “opt out” violates their religious beliefs.

In one of his first acts in the White House, President Donald Trump announced he intended to broaden an exemption previously applied only to houses of worship to any employer who raised a religious objection.

The change was immediately blocked by a federal judge, who held the administration did not follow proper procedures for issuing the rules.

On Wednesday, the justices heard two consolidated cases, Trump v. Pennsylvania and Little Sisters of the Poor v. Pennsylvania, that were brought by defenders of the rules who argue they are necessary for protecting religious freedom.

They are particularly noteworthy because they are the first cases to address the contraceptive mandate since Trump appointees Justices Neil Gorsuch and Brett Kavanaugh joined the court.

During the arguments Wednesday morning, it was quickly evident that the court’s four liberal justices were troubled by the new rules.

Justice Ruth Bader Ginsburg, who joined the conversation from a hospital where she was being treated for an infection, made it clear she thought the White House proposal was unconscionable.

“You have just tossed entirely to the wind what Congress thought was essential,” she said to Solicitor General Noel Francisco at one point.

What was intended, she said, was for women to “be provided these services with no hassle, no cost on them.”

Justice Sonia Sotomayor said that between 75,000 to 150,000 women could lose birth control coverage if the rules were to take effect.

“If there is no substantial burden, how can the government justify an exemption that deprives these women of seamless coverage?” she asked.

Taking the lead for the conservative justices, Justice Samuel Alito Jr. pressed Michael Fischer, Pennsylvania’s chief deputy attorney general, on whether his clients would make any exceptions to contraceptive coverage for religious beliefs.

Fischer, who was arguing on behalf of both Pennsylvania and New Jersey said it would violate the First Amendment if churches were unable to be exempt.

The problem, he said, is that the Trump rule is too broad, and would allow too many to skirt the mandate.

Justice Kavanaugh appeared to agree with Fischer on this point, but wondered aloud whether the Constitution granted the court the prerogative to intervene.

“The judicial role is not to put limits on agency discretion that the Congress has not put there,” he said.

All of this appears to suggest the possibility that Chief Justice John Roberts will cast the deciding vote in the case.

On Wednesday, he appeared skeptical of the government’s reliance on the Religious Freedom Restoration Act of 1993, a bipartisan law that seeks to ensure religious freedoms are protected, as the cornerstone for its argument.

“I wonder if your reliance on RFRA is too broad,” he said to Francisco at one point.

That will be one of the issues the justices will wrestle with as they conference over the case in coming weeks.

Roberts also seemed to be the centerist on the court as he questioned Paul Clement, the attorney for the Little Sisters of the Poor.

“Neither side in this debate seems to want the exemption to work,” he said at one point. “Is it really the case that there is no way to resolve those differences?”

Roberts sided with conservatives in a previous birth control case, the landmark 2014 case Burwell v. Hobby Lobby Stores, in which the court said that closely held for-profit corporations that have moral or religious objections to contraception can be exempt from the contraceptive mandate.

The court is likely to hand down its ruling in the case in late June.

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