WASHINGTON (CN) — Walloping access rights to free birth control in America, the Supreme Court on Wednesday endorsed Trump-ordered exemptions that would let employers deny coverage if they assert moral objections.
President Donald Trump had winnowed the so-called contraceptive mandate of the federal health care law known as the Patient Protection and Affordable Care Act shortly after taking office.
The law, as originally enacted, exempted only religious organizations like churches from the requirement that employers more than 50 people on staff to include free contraception as part of their health insurance offerings.
With the 2014 Supreme Court case Burwell v. Hobby Lobby, however, Health and Human Services later extended that privilege to closely held corporations whose owners say that covering contraception would violate their religious beliefs.
Trump’s widening of those exemptions for employers who morally objections triggered a lawsuit by Pennsylvania and New Jersey.
Standing in for a religious order called Little Sisters of the Poor, the administration appealed to the Supreme Court after the Third Circuit upheld an injunction against it. When the court heard oral arguments in May — among the first to be held telephonically and broadcast live due to the coronavirus pandemic — Justice Ruth Bader Ginsburg dialed in from a hospital where the 87-year-old had undergone treatment for a benign gallbladder infection a day earlier.
Ginsburg dissented from Wednesday’s reversal, saying that it will cause an immediate loss of no-cost contraceptive services for between 70,500 and 126,400 women, by the government’s own estimates, “in its zeal to secure religious rights to the nth degree.”
“Destructive of the Women’s Health Amendment, this court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets,” Ginsburg continued, joined in the dissent by Justice Sonia Sotomayor. “The Constitution’s Free Exercise Clause, all agree, does not call for that imbalanced result. Nor does the Religious Freedom Restoration Act of 1993 condone harm to third parties occasioned by entire disregard of their needs.”
Justices Elena Kagan and Stephen Breyer concurred in the judgment but did not join the lead opinion by Justice Clarence Thomas, which defends the discretion of the Health Resources and Services Administration to issue exemptions.
“HRSA has virtually unbridled discretion to decide what counts as preventive care and screenings,” Thomas wrote. “But the same capacious grant of authority that empowers HRSA to make these determinations leaves its discretion equally unchecked in other areas, including the ability to identify and create exemptions from its own guidelines.”
Thomas emphasized that the agency’s authority was decreed by Congress, which “declined to expressly require contraceptive coverage in the ACA itself.”
Furthermore, Thomas said, the agency followed all administrative requirements in promulgating the moral exemption, including providing sufficient notice and a 60-day period for interested parties to submit comments.
The 26-page opinion concludes with a nod to the Little Sisters, whom Thomas notes have “for over 150 years … engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother.”
“But for the past seven years, they — like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision — have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs,” Thomas wrote. “After two decisions from this court and multiple failed regulatory attempts, the federal government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns — the administratively imposed contraceptive mandate.”
Justice Samuel Alito saluted the religious order as well in a concurring opinion joined by Justice Neil Gorsuch, which says the majority should have gone farther to curb the states from mounting an alternative challenge to the rule as the case returns to the lower court on remand.
“I understand the court’s desire to decide no more than is strictly necessary, but under the circumstances here, I would decide one additional question: whether the Court of Appeals erred in holding that the Religious Freedom Restoration Act (RFRA), does not compel the religious exemption granted by the current rule,” Alito wrote. “If RFRA requires this exemption, the departments did not act in an arbitrary and capricious manner in granting it. And in my judgment, RFRA compels an exemption for the Little Sisters and any other employer with a similar objection to what has been called the accommodation to the contraceptive mandate.”
The shout-out did not go unnoticed.
“We are overjoyed that, once again, the Supreme Court has protected our right to serve the elderly without violating our faith,” Mother Loraine Marie Maguire of the Little Sisters of the Poor said in a statement through the Becket Fund for Religious Liberty. “Our life’s work and great joy is serving the elderly poor and we are so grateful that the contraceptive mandate will no longer steal our attention from our calling.”
Saying “mandate that would have gutted their ministry,” Mark Rienzi, president of Becket, accused the states of “harassing nuns” and furthering a “culture war.”
But Pennsylvania Attorney General Josh Shapiro denied the suggestion that this was a case of governments dragging to court.
“Our case was never about requiring religious groups to provide contraception — organizations like the Little Sisters are already exempt,” Shapiro said. “Our case is about an overly broad rule that allows the personal beliefs of CEOs to dictate women’s guaranteed access to contraceptive medicine.”
Kagan wrote that she had different grounds — namely, agency deference — for concurring in judgment. She predicted that the moral exemptions will ultimately crumble on remand, however, as the lower court tackles whether the changes were arbitrary and capricious.
“The departments’ contrary decision to extend the exemption to those without any religious need for it yielded all costs and no benefits,” Kagan wrote, joined by Breyer. “Once again, that outcome is hard to see as consistent with reasoned judgment.”
Brigitte Amiri, deputy director of the ACLU’s Reproductive Freedom Project, called the court reversal “shameful.”
“Denying employees and students coverage for birth control will limit their ability to decide whether and when to have a family and make other decisions about their futures,” Amiri said in a statement. “And it will exacerbate existing inequalities, falling hardest on people with the fewest resources and people of color.
“What’s important to note is that today’s decision is not a mandate that employers and universities drop birth control coverage from their plans. Most employers will continue to provide coverage, and we urge all businesses and schools to do so and stand against this discrimination.”
Leland Moore, a spokesman with the office of New Jersey’s Attorney General Gurbir Grewal, voiced disappointment with the court’s decision as well.
“But we’re proud to stand up for women’s access to affordable health care, today and every day and will continue to fight for what’s right,” Moore said in a statement.
The Little Sisters case was one of two today involving the freedom of religion.
In the other case, Our Lady of Guadalupe School v. Morrissey-Berru, the court ruled against two teachers who brought discrimination claims against the Catholic schools that had fired them. As in the Little Sisters case, the ruling was 7-2 with Sotomayor and Ginsburg dissenting.
Julianna S. Gonen, federal policy director at the National Center for Lesbian Rights, spoke out against the Little Sisters ruling. “We are gravely troubled that the court has once again allowed religious beliefs to trump access to reproductive health care,” Gonen said in a statement.
The Center for Reproductive Rights, which brought an amicus brief in the case with 20 other organizations, slammed today’s ruling as well.
“Today’s ruling has given bosses the power to dictate how their employees can and cannot use their health insurance — allowing them to intrude into their employees’ private decisions based on whatever personal beliefs their employers happen to hold,” Lourdes Rivera, senior vice president of the center, said in a statement.
“Refusing women the health care they are guaranteed by law is an act of discrimination. This fundamentally wrong-headed ruling is a critical misinterpretation of the Affordable Care Act and what Congress intended.”
Rivera said the duty now falls to Congress “to ensure the administration is prevented from enforcing these discriminatory rules.”