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The law, as originally enacted, exempted only religious organizations like churches from the requirement that employers more than 50 people on staff to include free contraception as part of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.”