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Supreme Court weighs Trump contraceptive coverage rules


The US Supreme Court is seen in Washington, DC, on May 4, 2020, during the first day of oral arguments held by telephone, a first in the Court’s history, as a result of COVID-19, known as coronavirus.

Saul Loeb | AFP | Getty Images

Obamacare’s contraceptive coverage mandate returns to the Supreme Court on Wednesday in a high-profile case that will force the justices to once again consider which businesses may deny their employees access to free birth control. 

The fight over the mandate, included in the 2010 health-care overhaul legislation formally known as the Affordable Care Act, has spanned nearly a decade and two presidential administrations.

It has come to the Supreme Court twice before — once, in 2016, during an election year — though never quite like this time.

As a result of health precautions taken in the midst of the spreading coronavirus, Wednesday’s oral argument will be the third in the history of the court to be broadcast live to the public. The audio feed, provided by C-Span, will be available at 10 a.m. ET on this page. 

The two previous cases that came to the Supreme Court over the coverage mandate concerned whether Obama administration requirements imposed too harsh a burden on employers with religious objections to providing or facilitating contraceptive coverage. 

Wednesday’s case is the first to reach the Supreme Court under President Donald Trump, and asks the opposite question: Whether Trump administration rules released in 2017 provide too wide of a carve out for religious and moral objectors to deny women coverage. 

The stakes in the latest case are higher than the previous two, according to Nelson Tebbe, a law professor at Cornell Law School who studies constitutional law and religious freedom. In those cases, female employees whose benefits were at stake still retained coverage, via third parties, after their employers gained exemptions. 

“This is a very different kind of religious exemption, because it does not provide alternative coverage for female employees or female dependents of male employees,” Tebbe said. Possibly more than 100,000 women stand to lose their contraceptive coverage, he said. 

Election year drama

The case comes as Trump is campaigning for reelection in November against his Democratic rival Joe Biden, who was vice president at the time Obamacare was signed into law. A decision is expected over the summer. 

The 2017 rules allow for an exemption to the contraceptive coverage mandate for any employer that has a sincerely held religious or moral objection, without having to provide any notice. 

Under rules rolled out under President Barack Obama, churches and other houses of worship were exempted from the requirement, and nonprofit religious groups could seek an “accommodation.” Under the accommodation process, religious nonprofits can notify their insurers of their objection, and the insurer then provides the contraceptives. 

The Supreme Court extended the accommodation process to some private businesses in the 2014 case Burwell v. Hobby Lobby, but religious groups have argued that the accommodation is still a burden on their religious exercise, because it makes them “complicit” in the contraceptive coverage. 

In 2016, the Supreme Court declined to issue a substantive ruling in a case that raised that question, instead urging the government to come up with a compromise with religious objectors. 

But in January of 2017, the Obama administration said it found “no feasible approach” that would resolve the concerns of religious groups “while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.” 

Later that month, Trump took office after winning strong support in the 2016 election from religious groups. By the end of the year, his administration unveiled the new rules, which quickly came under fire in court.

State challenges

Pennsylvania and New Jersey successfully challenged the rules, arguing that the Trump administration did not follow the appropriate rulemaking process, known as notice-and-comment, when it came up with its 2017 regulations. 

“At the heart of this case is that the Trump administration overreached,” Josh Shapiro, the Democratic attorney general of Pennsylvania, said in a recent phone call with reporters.

The states, which operate taxpayer funded family planning and contraceptive programs, argued that they would be burdened with steep financial costs if employers opted out of the coverage. 

A federal district court sided with Pennsylvania and New Jersey in 2017 and prevented the new rules from going into effect. That decision was affirmed by the Philadelphia-based 3rd U.S. Circuit Court of Appeals.

Circuit Judge Patty Shwartz, who authored the appeals court opinion siding with Pennsylvania and New Jersey, cited the government’s estimates that between 70,500 and 126,400 women would lose contraceptive coverage after their employers invoked a religious exemption.  

The new rules could leave states on the hook for hundreds of millions of dollars in medical bills related to unintended pregnancies alone, Shwartz wrote. 

The rules are being defended by the Trump administration’s Department of Justice as well as the Pennsylvania-based religious nonprofit The Little Sisters of the Poor Saints Peter and Paul Home. The two cases are consolidated and arguments in both are expected to last a total of one hour. 

‘Least restrictive means’

The Trump administration has argued in court papers that the Affordable Care Act allows for its expanded exemptions, and that a 1993 law known as the Religious Freedom Restoration Act requires them.

The RFRA prohibits the government from substantially burdening religious exercise unless it can show that it is using the “least restrictive means” to accomplish an important interest.

The administration, via the Justice Department, argues that the accommodation process, in which religious nonprofit employers can avoid providing contraceptive coverage by facilitating coverage via a third party, was insufficient. 

Solicitor General Noel Francisco wrote in one brief submitted to the top court that some employers hold the belief that “participating in a process by which their employees receive contraceptive coverage makes them complicit,” even if the coverage is provided by others. 

While it’s impossible to say how the justices will come down, the court’s 5-4 conservative majority gives the Trump administration an advantage. 

“I’ve been wrong before, but I would be surprised if this case invalidated the Trump administration’s regulations,” Tebbe said. 

The cases are known as Donald Trump v. Pennsylvania, No. 19-454, and The Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, No. 19-431. 

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