The Courts

Roberts, Liberal Justices Wary of Trump Exemptions to Birth Control Mandate

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The Supreme Court on Wednesday seemed wary of Trump administration exemptions to the Obamacare birth control mandate in a marathon teleconference session that lasted over 90 minutes.

The mandate requires employers to provide contraceptive coverage to their workers at no cost. Trump administration rules at issue in Wednesday's case allow employers, including universities and publicly traded companies, to self-exempt from the mandate if they have religious or moral qualms about providing birth control to their workers.

The case closely divided the Court, which has twice heard cases involving accommodations under the mandate. Chief Justice John Roberts and the four left-leaning justices appeared concerned that the Trump rule is overbroad, doing more work than necessary to placate objectors.

Speaking from Johns Hopkins Hospital in Baltimore, Justice Ruth Bader Ginsburg said the Trump policy ignores the Affordable Care Act and forces workers and students to spend their own money because of an employer's religious scruples.

"The glaring feature of what the government has done in expanding this exemption is to toss to the winds entirely Congress's instruction that women need and shall have seamless, no-cost, comprehensive coverage," Ginsburg told solicitor general Noel Francisco.

Ginsburg was hospitalized Tuesday with a benign gallbladder condition. She sounded healthy and spoke at length during Wednesday's tele-argument. The justice anticipates leaving the hospital in a day or two.

Roberts had pointed questions for the administration and wondered if the Trump policy swept "too broadly." He later asked if a compromise is feasible, a possibility Justice Stephen Breyer also raised.

"Is it really the case that there is no way to resolve those differences?" Roberts said.

Two states, Pennsylvania and New Jersey, challenged the administration's rules in federal court. A trial judge issued a nationwide injunction barring enforcement of the exemption across the country. The Third U.S. Circuit Court of Appeals sided with the states, prompting an appeal to the Supreme Court.

Francisco argued the exemption is allowed under Obamacare and required under a 1993 law called the Religious Freedom Restoration Act. RFRA seeks to strike "sensible balances" between the government and religious objectors.

A happy balance has proved elusive in recent battles over the birth control mandate. The Little Sisters of the Poor, an order of Catholic nuns involved in Wednesday's case, have pressed for protection from the mandate for almost a decade.

"For seven years this unnecessary legal battle has hung over our ministry like a storm cloud," Mother Loraine Marie Maguire of the Little Sisters said on a press call following Wednesday's argument.

"There are very strong interests on both sides here, which is what makes the case difficult," Justice Brett Kavanaugh said.

According to RFRA, the government cannot place a "substantial burden" on religion without a very good reason. Even then, it must use the least restrictive means possible to achieve its goal. Francisco said the government's far-reaching exemption is one way to comply with RFRA's requirements.

"Once there's a substantial burden, the government has the flexibility to lift it in different ways, including through a traditional exemption," Francisco said.

Justice Sonia Sotomayor was less certain, noting some findings show upward of 120,000 people will lose cost-free birth control coverage if the Trump rules take effect.

"I would note that in this particular litigation, the [states] haven't yet identified anyone who would actually lose access to contraception as a result of these rules, I think presumably because contraception is widely available in this country," Francisco replied.

The ACA itself is another source of authority for the exemption, Francisco said. It's up to the administration to choose which "preventative services" are offered at no cost and who can be exempted from its mandates, he argued.

Several of the conservative justices seemed to agree.

"Looking at the statute here, it's about as … expansive a delegation of statutory authority as one might imagine," said Justice Neil Gorsuch.

The case has some of the justices playing against type. Liberal jurists tend to tolerate broad "delegations" of power from Congress to an agency while conservatives usually read those delegations narrowly for fear of regulatory overreach. In Wednesday's case, however, the conservatives seemed comfortable with the idea that the ACA gives the administration a lot of room to decide which employers are exempt from the birth control mandate.

Pennsylvania and New Jersey counter that the statute lets the administration decide what "preventative services" must be covered in insurance plans. It says nothing, on the other hand, about exemptions.

Justice Samuel Alito noted that the Obama administration granted churches an exemption from the mandate from the start. If the states were right, Alito said, that would mean even the initial Obama exemption is unlawful. Pennsylvania lawyer Michael Fischer replied that the exemption was required by the Constitution but struggled to articulate how it would extend beyond clergy. The original Obama exemption covered both ministers and church employees doing secular work.

There could be a consolation prize for the administration if Trump's rules are struck down. Francisco asked the justices to make clear that nationwide injunctions are not an appropriate tool for trial judges if they lose the core dispute over the exemption. Justice Clarence Thomas, who has criticized nationwide injunctions in his past writings, pressed attorneys from both sides on that point.

"For a single district court judge to think that he or she has a monopoly on the reasoning here and should impose a remedy that affects people across the nation seems to me to be very imprudent," said lawyer Paul Clement, who represented the Little Sisters in Wednesday's argument.

A decision in the case, No. 19-431 Little Sisters of the Poor v. Pennsylvania, is expected by the summer.