In a major victory for U.S. President Donald Trump, the Supreme Court ruled on Wednesday that the administration may exempt employers with a religious or moral objection from a federal mandate requiring them to provide free birth control coverage to their employees.
The ruling weakens a key requirement under the Affordable Care Act, an Obama era law that has faced repeated legal and political challenges since its enactment 10 years ago. According to Trump administration estimates, between 70,000 and 126,000 women could lose free employer-provided contraceptive coverage as a result of the ruling. Critics say the real number could be higher.
The vote was 7-2, with liberal justices Elena Kagan and Stephen Breyer joining the majority. The two other liberal justices on the court — Ruth Bader Ginsburg and Sonia Sotomayor — dissented.
Thomas writes for majority
Conservative Justice Clarence Thomas, writing the majority opinion, said that the Health Resources Services Administration, the federal agency that manages affordable health care plan, has “broad discretion to define preventive care and screenings and to create the religious and moral exemptions.”
This is the third time in six years that the Supreme Court has weighed in on a challenge to the religious exemption. But the controversy is far from over.
The high court sent the case back to the lower courts where the plaintiffs in the case — the states of Pennsylvania and New Jersey — could raise fresh arguments.
“We could see this case come back up again in a year or two based on whatever the lower courts decide on the arbitrary and capricious issue,” said Greer Donley, an assistant professor of law at the University of Pittsburgh who researches reproductive rights issues.
ACA started in 2010
The Affordable Care Act (ACA), enacted in 2010 under then-President Barack Obama, requires employer-provided health insurance plans to provide free “preventive care and screenings.”
Under the law, HRSA, part of the Department of Health and Human Services, subsequently issued rules mandating that the health plans provide women workers with free contraceptive care.
The guidelines however exempted houses of worships such as churches from the mandate while giving religious non-profits the ability to opt out.
Conservatives oppose the mandate saying it forces employers to pay for abortion-inducing drugs and procedures.
Campaign promise
As a presidential candidate in 2016, Trump criticized the contraceptive requirement and vowed to repeal the law altogether.
In 2017, after Congress failed to invalidate Obamacare, the Trump administration directed HRSA to expand the exemptions, allowing not just private religious outfits but also organizations with a “moral objection” to be exempted from providing birth control coverage.
Pennsylvania and New Jersey then sued to block the new rules, arguing that that the administration lacked authority under both the Affordable Care Act and the Administrative Procedure Act to expand the exemptions. A federal district court and appeals court agreed with the states and blocked the rules.
The Little Sisters of the Poor, a Roman Catholic religious institute for women, challenged the ruling, joined by the Trump administration.
All nine Supreme Court justices agreed that HRSA has the authority to mandate contraceptive coverage under the Affordable Care Act. Where they disagreed was whether the law allows the agency to create exemptions.
Justice Thomas wrote that it does.
“The only question we face today is what the plain language of the statute authorizes,” Thomas wrote. “And the plain language of the statute clearly allows the departments to create the preventive care standards as well as the religious and moral exemptions,” Justice Thomas also said.
Justice Ginsburg disagreed. In her dissent, she wrote that the law allows for no such exemption. She then went on to opine that the court’s decision “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.”
A long history
The ACA has been the subject of lawsuits for as long as it has been in effect. Some of those cases have come before the Supreme Court.
In 2012, the Supreme Court voted 5-4 to rule that the law is constitutional, with Chief Justice John Roberts casting the crucial fifth vote that many credit with saving the program.
In 2014, however, the high court struck down the contraceptive mandate for closely held businesses, saying it violated a 1993 law known as Religious Freedom and Restoration Act.
The latest ruling, though backed by five conservatives and two liberals, proved as divisive as Obamacare itself.
Matthew Staver, founder and chairman of Liberty Counsel, an evangelical Christian group, called the decision “a victory for religious employers.”
“Thanks to the Trump administration for recognizing the need to protect religious employers from mandates that conflict with religious and moral beliefs about the sanctity of human life,” Staver said in a statement.
Democratic House Speaker Nancy Pelosi said the decision will “enable the Trump Administration’s brutal assault on women’s health, financial security and independence.”
“It is unconscionable that, in the middle of the worst global pandemic in modern history, the Administration is focusing on denying basic health care to women that is essential for their health and financial security, instead of protecting lives and livelihoods,” Pelosi said in a statement.
Donley, the University of Pittsburg law professor, said the ruling could disproportionately affect low-income women and those of color.
“These are the kind of policy reasons that the mandate was promulgated to begin with,” Donley said. “When you see cases like this, you already start to be worried about how this could chip away at the rights that were fought for."
