The Courts

Supreme Court Set for Another Fight Over Obamacare Birth Control Mandate

U.S. Supreme Court Justices John Roberts, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh / Getty Images

The Supreme Court on Wednesday will consider whether a religious liberty exemption to the Affordable Care Act's birth control mandate goes too far.

Two Trump administration rules, which provided exemptions to the mandate that employers provide contraceptive coverage at no cost, are at the center of Wednesday's case. The rules allow any employer to self-exempt from the mandate if they object to providing contraceptive coverage on religious or moral grounds. The new exemption is broader than its Obama-era predecessor, which allowed only certain employers to opt out, provided they first notified their insurer or the Department of Health and Human Services so alternative coverage could be arranged.

Two Democrat-controlled states, women's groups, and a large corporate coalition warn that up to 130,000 women will lose contraceptive coverage unless the Trump rules are invalidated.

The Little Sisters of the Poor, an order of Catholic nuns, are involved in Wednesday's case. The sisters hope the case will end their long-running effort to win an exemption from the mandate, though there is some question as to whether they are properly involved at this stage.

Wednesday's case is one of several religious liberty matters on the Court's docket. By summer, the justices will rule on the mandate exemption, the scope of a religious exception from workplace discrimination rules, and state laws barring taxpayer support of religious schools. Though religious conservatives enjoy the real prospect of a clean sweep in those cases, the merit of such victories is questionable in a society increasingly governed by progressive social values.

Critics of the expanded Trump rule say the mandate has saved women hundreds of millions in out-of-pocket costs and increased access to more effective forms of contraceptives. If the new exemption is allowed to stand, they fear women will lose educational and professional opportunities.

"Allowing companies and universities to use religious beliefs to block employees' and students' birth control coverage is discrimination, not religious liberty," said the ACLU's Brigitte Amiri. "Everyone should have birth control coverage, regardless of where they work or where they go to school."

Pennsylvania and New Jersey challenged the Trump rules in federal court once they were issued. A federal trial judge sided with the states and issued a nationwide injunction barring enforcement of the new exemption across the country. The Third U.S. Circuit Court of Appeals ruled for the states, prompting an appeal to the Supreme Court.

The states fear they will have to shoulder the cost of birth control access for women who lose coverage due to the Trump rules. Pennsylvania and New Jersey told the justices in legal filings that they need protection from "costs associated with providing contraceptive coverage to in-state employees and students."

The legal question in the case is whether the Trump administration had authority to adopt the expanded conscience exemption. The government says its rules are allowed under the ACA and required under the Religious Freedom Restoration Act (RFRA). Enacted in 1993, RFRA seeks to strike "sensible balances between religious liberty and competing prior governmental interests."

The plaintiffs counter that Trump's expanded conscience exemption is unlawful for two reasons. First, they say the government did not follow procedural requirements when the rule was adopted. On the merits, they argue the government exceeded its authority under the ACA and RFRA. Framing the rules in terms of regulatory overreach is meant to appeal to the conservative justices, who are often anxious about agency power.

The ACA directs the government to establish guidelines for implementing the mandate. That means the law gives the administration power "not just to specify what services should be covered, but also to provide appropriate exemptions," government lawyers wrote in legal filings.

The plaintiffs reject that reading. They say the relevant provision only directs the government to identify what services should be covered. It does not "implicitly [delegate] limitless authority to grant non-health related exemptions."

The RFRA question is the most important in the case. The administration says that without its new exemption, objecting employers will be forced to choose between their religious convictions and stiff financial penalties for noncompliance, thus infringing on religious freedom in violation of RFRA.

"That conclusion is hardly groundbreaking," lawyers for the Little Sisters wrote of that point in legal briefs. In a 2014 case, Burwell v. Hobby Lobby, the Court said the birth control mandate imposes a "substantial burden" on religious practice. While Hobby Lobby only applied to a narrow band of employers, the administration and the Little Sisters says the new exemption is a logical extension of that decision.

The challengers disagree. RFRA, they say, merely provides an opportunity for religious believers to challenge certain conduct in court. Agencies can't use it "as a sword to create exemptions from other laws," they wrote.

There could be a silver lining for the Trump administration if the Court sides with the states. Should the states win, then the government would like the justices to bar enforcement of the rule with respect to Pennsylvania and New Jersey only. In the process, the government asked the justices to "resolve the status of nationwide injunctions, reiterating that judicial relief may be no broader than necessary."

Nationwide injunctions have beset the administration since the president took office. Trial judges have issued such injunctions to block the president's travel sanctions and the termination of the Deferred Action for Childhood Arrivals program, among other policies. In a 2019 speech to the American Law Institute, Attorney General William Barr argued nationwide injunctions inflate the power of a single judge and turn ordinary cases into judicial emergencies.

"According to the Department of Justice's best estimates, federal district courts have issued more than 50 nationwide injunctions in the past three years, nearly as many as were issued in the entire history of the United States before that time," government lawyers wrote.

Justices Clarence Thomas and Neil Gorsuch have criticized the proliferation of nationwide injunctions in recent years.

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