The Supreme Court ruled on July 8 that the Trump administration may allow employers and universities to opt-out of the Affordable Care Act requirement to provide contraceptive care because of religious or moral objections. The issue has been at the heart of an intense legal battle for nine years, first with the Obama administration sparring with religious organizations who said offering contraceptive care to their employees violated their beliefs, and then with the Trump administration broadening an exemption, angering women’s groups, health organizations, and Democratic-led states. July 8th’s decision greatly expands the ability of employers to claim the exception, and the government estimates that between 70,000 and 126,000 women could lose access to cost-free birth control as a result.
The decision was one of several that has made the Supreme Court’s term strikingly successful for religious interests. By the same 7-to-2 vote as in the contraceptive cases, the court also ruled for the ability of religious organizations to hire and fire without offending some anti-discrimination laws. And last week religious groups achieved a longtime goal when the court ruled that states that provide support to private education must allow religious schools to participate. “It’s a big term,” said Mark Rienzi, president of the Becket Fund for Religious Liberty. And the July 8 decisions showed that “broad agreement for religious interests and religious diversity.” The Supreme Court’s decisions will conclude on July 9th with what could be a blockbuster decision about whether President Trump may shield his private financial records and tax returns from congressional committees and a New York prosecutor. It will be a fitting finale to a term in which the court has left few politically controversial topics untouched: It said federal law protects LGBTQ workers from discrimination, disappointed antiabortion activists and gun rights supporters, and stopped the Trump administration from ending the program that protects undocumented immigrants brought to the United States as children.
The contraceptive case involves a long-running dispute over the Affordable Care Act (colloquial known as “Obamacare“), and a requirement that employers provide cost-free birth control for female employees. The law itself does not specify the rules, leaving it to federal agencies to determine how contraceptives fit into the mandate for cost-free “preventive care and screenings.” The Obama administration required contraceptives and had narrower exceptions for churches and other houses of worship. It created a system of “accommodations,” or workarounds, for religiously affiliated organizations such as hospitals and universities. Those accommodations would provide contraceptive care but avoid having the objecting organizations directly cover the cost. The Trump administration moved in 2018 to expand the types of organizations that could opt-out to include religious groups and non-religious employers with moral and religious objections. Under the rules, the employers able to opt-out include essentially all nongovernmental workplaces, from small businesses to Fortune 500 companies. And the employer has the choice of whether to permit the workaround.
The US Court of Appeals for the 3rd Circuit had put the Trump administration exemptions on hold and said the agencies did not have the broad authority to grant them. Justice Clarence Thomas, who wrote the majority opinion, said that was wrong. “We hold that the [administration] had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections,” wrote Thomas, who was joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Thomas reasoned that if an administration’s agencies have “virtually unbridled discretion to decide what counts as preventive care and screenings, he said, they must also have “the ability to identify and create exemptions” from those guidelines. Justices Elena Kagan and Stephen Breyer agreed with the court’s conservatives that the administration had the right to create an exemption, but they said lower courts should examine whether the administration’s rules were “consistent with reasoned judgment.” Justice Ruth Bader Ginsburg issued a blistering dissent, in which she said her colleagues had gone too far to appease religious conservatives. Until now, “this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs,” Ginsburg wrote in a brief joined by Justice Sonia Sotomayor. “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” Ginsburg said Congress meant to provide “gainfully employed women comprehensive, seamless, no-cost insurance coverage for preventive care protective of their health and wellbeing.” The court’s action, she wrote, “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.”