Ginsburg opposes Trump plan to limit Obamacare’s birth control coverage
WASHINGTON — Justice Ruth Bader Ginsburg, speaking Wednesday from a hospital room in Baltimore, sharply challenged the Trump administration’s plan to exempt employers who have religious or moral objections to birth control from an Affordable Care Act rule mandating that most health plans offer no-cost contraceptives.
“You are shifting the cost of the employer’s religious beliefs onto the women who don’t share those religious beliefs,” she told President Donald Trump’s solicitor general, Noel Francisco, during an oral argument conducted via a telephone conference between justices and attorneys in response to the coronavirus-related shutdowns.
That already-unprecedented accommodation by the Supreme Court led to another first: a justice participating in an oral argument from a hospital bed. Ginsburg, 87, was admitted Tuesday to Johns Hopkins Hospital after suffering from an infection related to gallstones. She is expected to be released Wednesday or Thursday, but was able to phone in to the oral arguments and participate.
Ginsburg took the opportunity to bluntly tell the Trump lawyer why the expanded opt-out rule was wrong in her view. “You have just tossed entirely to the wind what Congress thought was essential, that is, that women be provided these services, with no hassle, no cost to them,” she said. “The women end up getting nothing.”
The extraordinary exchange highlighted an argument in which the justices sounded closely split in this clash between religious rights and women’s rights.
Three years ago, the Trump administration proposed to give employers, including universities and private companies, a broad right to opt out of providing contraceptives to employees and their spouses. They said such a sweeping change was authorized under the 2010 Affordable Care Act, also known as “Obamacare,” a point strongly disputed by Democratic state attorneys.
If the rules are upheld, between 70,000 and 126,000 women will lose coverage for contraceptives this year, according to the administration. Women’s rights advocates say the number is likely to be far higher, depending on how many employers seek to opt out of the requirement.
While federal judges have blocked the new rules from taking effect, Trump’s lawyers had hoped the court’s conservatives would side with the administration. But Chief Justice John G. Roberts Jr. did not sound ready to rule squarely for the government.
At one point, Roberts said he did not understand why the two sides in this dispute could not work out a compromise that protected religious employers but also provided the promised contraceptives. He also questioned what he said was the administration’s overly broad reliance on a federal law that says the government should not put a “substantial burden” on individuals exercising their freedom of religion.