High Court Tackles Trump-Set Barriers to Free Contraception

WASHINGTON (CN) — Dialing in from the hospital, Supreme Court Justice Ruth Bader Ginsburg made no secret of her disapproval of the government Wednesday for standing in the way of women’s access to free birth control.

“The glaring feature of what the government has done in expanding this exemption is to toss to the wind entirely Congress’ instruction that women need and shall have seamless, no-cost comprehensive coverage,” Ginsburg said this morning at oral arguments, which have been held telephonically and broadcast live this week due to the coronavirus pandemic. Ginsburg phoned in from Johns Hopkins Hospital in Baltimore after undergoing nonsurgical treatment for a benign gallbladder infection the day before.

“This leaves the women to hunt for other government programs that might cover them,” the 87-year-old justice continued, “and for those that are not covered by Medicaid or one of the other government programs, they can get contraceptive coverage only from paying out of their own pocket, which is exactly what Congress didn’t want to happen.”

(Courthouse News photo/Barbara Leonard)

As initially conceived, the Patient Protection and Affordable Care Act required employers with more than 50 employees to include free contraception as part of the health insurance they provide. Religious organizations like churches were automatically exempted from the requirement, and the 2014 Supreme Court case Burwell v. Hobby Lobby later extended that privilege to closely held corporations whose owners say that covering contraception would violate their religious beliefs.

President Donald Trump further winnowed the so-called contraceptive mandate shortly after taking office, enacting a new exemption for employers who morally object to providing their workers with birth control. This triggered a lawsuit by Pennsylvania and New Jersey, who won an injunction that the Third Circuit upheld.

Though the states say the broadened exemption unduly burdens insurers and women, U.S. Solicitor General Noel Francisco urged the high court on Wednesday to respect the authority of the federal Health Resources and Services Administration. 

“We think that also includes the discretion to require that most employers provide it but not the small number who have sincere conscientious objections because otherwise, the original church exemption likewise would be illegal as would be the effective exemption for self-insured church plans,” Francisco said.

Chief Deputy Pennsylvania Attorney General Michael Fischer argued that the authority envisioned by the government is so broad it would “prevent virtually any employer or college to opt-out of providing contraceptive coverage entirely, including for reasons as amorphous as vaguely defined moral beliefs.”

“If their reading were correct, there would be no limits to what HRSA could do other than arbitrary and capricious review. … And frankly, we have to remember, we’re talking about the Health Resources and Services Administration,” Fischer said. “It’s really unlikely that Congress would have delegated to that organization authority to create broad religious and moral exemptions, given that they have no expertise in that area.” 

Paul Clement, who had been the U.S. solicitor general in the George W. Bush administration, delivered arguments Wednesday on behalf of the religious order Little Sisters of the Poor.

Now a partner at Kirkland & Ellis, Clement said the injunction against the government must be overturned under the Religious Freedom and Restoration Act of 1993.

The Third Circuit’s reasoning cannot be squared with Burwell v. Hobby Lobby, he said, and “was plainly mistaken” with respect to substantial analysis of burden.

“After all, the penalties that enforce the mandate here are the exact same penalties that underly the basic contraceptive mandate in the Hobby Lobby decision itself,” Clement said. “And so, when the government imposes a burden on religion by telling the Little Sisters that they have to comply with the mandate, or the accommodation or else, when the or else is massive penalties, that plainly provides the substantial burden on religious exercise.”

Mother Loraine Marie Maguire of the Little Sisters group said in a statement the ministry was eager to get rid of the “storm cloud” of litigation hanging over the organization for nearly a decade.

“In the midst of the Covid-19 pandemic, when the lives of our residents face a real and imminent threat, we are more eager than ever to be able to care for our residents without being harassed by governments,” she said. 

The National Organization for Women said in a statement Wednesday that religious views do not excuse bigotry against half the population. Covered contraception is more than a theory: Tens of millions of women cannot afford birth control unsubsidized, according to the group’s research. 

“What’s more, unintended pregnancy is deadly,” the women’s group said. “It is closely correlated with infant mortality, maternal mortality and increased risk of domestic violence homicide.”

Brigitte Amiri, deputy director of the American Civil Liberties Union’s reproductive freedom project, likewise said that religious beliefs cannot be used to discriminate against other individuals.

“The court didn’t sanction an argument in the prior contraception cases that would result in a total loss of coverage for employees and they shouldn’t do so here either,” Amiri said in a statement. “The coverage of critical health care for hundreds of thousands of people is at stake.”

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