Birth-control rule debated at court
Expansion of exemptions for employers on coverage at issue
The Supreme Court on Wednesday heard arguments in the Trump administration’s effort to allow more employers to refuse to provide insurance coverage for birth control for female employees because of religious or moral objections.
It was the third time the high court considered the contraceptive coverage requirement, but the first since Neil Gorsuch and Brett Kavanaugh joined the bench.
The Trump administration in 2018 expanded the types of organizations that could opt out of providing cost-free access to birth control and allowed exemptions based on moral as well as religious objections.
The Obama administration had narrower exceptions for churches and other houses of worship, and created a system of “accommodations” or workarounds for religiously affiliated organizations such as hospitals and universities to avoid directly covering the cost of birth control.
Kavanaugh acknowledged the “very strong interests on both sides,” but suggested it was up to each administration to use its discretion in the absence of specific limits imposed by Congress.
“Why isn’t this a reasonable way to balance this?” he asked the attorney representing the state of Pennsylvania, which is challenging the rules.
Chief Deputy Attorney General Michael Fischer said in response that the rules go well beyond what Congress envisioned by exempting organizations that had no problem complying with the accommodation provision.
Wednesday marked the third-consecutive day the high court held arguments by conference call because of the pandemic. Justice Ruth Bader Ginsburg participated from Johns Hopkins Hospital in Maryland, where she is recovering from treatment of a gallbladder condition.
Among the issues before the justices is to what extent the government should create exemptions for religious groups and nonreligious employers that say involvement in such coverage makes them complicit in acts that violate their faith.
Ginsburg and Justice Sonia Sotomayor expressed concerns about the possibility that tens of thousands of women could be left without no-cost access to birth control.
“You have just tossed entirely to the wind what Congress thought was essential,” Ginsburg said, “that women be provided these services with no hassle, no cost to them.”
Solicitor General Noel Francisco disagreed, telling the court that no part of the Affordable Care Act specifically requires contraceptive coverage, but instead allows the administration to “decide whether or not to cover it in the first place.”
Under the new rules, the employers able to opt out include essentially all nongovernmental workplaces, from small businesses to Fortune 500 companies. And the employer has the choice of whether to permit the work-around, which some organizations said made them complicit in providing contraception.
New Jersey and Pennsylvania challenged the rules in court.
Last summer, a unanimous panel of the U.S. Court of Appeals for the 3rd Circuit blocked the rules from taking effect nationwide. The court said the administration probably lacked authority to issue such broad exemptions and did not comply with requirements to provide notice and allow public comment on the rules.
An appeals court agreed, and the administration appealed to the Supreme Court to step in, as did the Little Sisters of the Poor. The order of Roman Catholic nuns had been instrumental in challenging the Obama administration rules.
The order of nuns points out that the government provided exemptions from the beginning for religious organizations such as churches. They say the accommodation provision violates the 1993 Religious Freedom Restoration Act, the law that says the government must have a compelling reason for programs that substantially burden religious beliefs.
For some groups, providing any birth control would violate their religious faith; others object only to contraceptives that work after an egg has been fertilized, such as the “morning-after pill” and intrauterine devices.
In Wednesday’s second argument, a 1991 law aimed at protecting consumers from unwanted telemarketing calls took center stage. Political organizations that want to use automated calling to do things like make calls to encourage people to vote challenged the law as a violation of the First Amendment.
On Monday, the court heard a case about Booking.com’s ability to trademark its name, and on Tuesday, a case about federal money to fight AIDS around the world.
Information for this article was contributed by Ann E. Marimow and Robert Barnes of The Washington Post; and by Jessica Gresko and Mark Sherman of The Associated Press.