The Supreme Court appeared divided Wednesday during arguments in a major case pitting women’s access to free contraceptive care against employers’ claims of religious liberty.

At issue is a regulation under the Affordable Care Act that requires employer-provided health insurance to include coverage for birth control without a copay. This is the third time that the contraceptive mandate has reached the Supreme Court, but the first since Justices Neil Gorsuch and Brett Kavanaugh joined the bench.

The current case centers on rules issued after President Donald Trump took office that would allow almost any employer to opt out of providing birth control coverage by citing religious or moral objections. Pennsylvania and New Jersey sued, and the rules were blocked by lower courts. The Trump administration and the Little Sisters of the Poor, an order of Catholic nuns, appealed. 

Arguments in Trump v. Pennsylvania, consolidated with Little Sisters of the Poor v. Pennsylvania, were conducted via telephone conference and aired live due to the coronavirus pandemic.

Justice Ruth Bader Ginsburg participated from a Maryland hospital where she is currently being treated for an infection caused by a gallstone.

Ginsburg said the Trump administration’s decision to weaken the mandate “tossed to the wind entirely Congress’ instruction, which is that women need and shall have seamless, no cost, comprehensive coverage.”

The Supreme Court this week heard arguments by phone for the first time ever.

The Supreme Court this week heard arguments by phone for the first time ever.

Women will have to hunt for other ways to be covered, she added, and if they are not covered by a government program, to pay out of their own pocket for contraceptives.

That’s “exactly what Congress didn’t want to happen,” she said.

But Kavanaugh, whose vote could be key in deciding the case, said, “There are very strong interests on both sides here, which is what makes the case difficult.”

“There’s religious liberty for the Little Sisters of the Poor and others, there’s the interest in ensuring women’s access to health care and preventive services, which is also a critical interest,” the conservative justice said. “So the question becomes, who decides how to balance those interests?”

The birth control mandate has been hotly litigated since its creation.

The Obama administration exempted houses of worship and provided a compromise for other religious nonprofits so that they didn’t have to offer coverage but employees could still get contraceptives. Under the accommodation, religious nonprofits notified their insurers of their objection and the insurers would then provide the contraceptive care. This accommodation was extended to some for-profit corporations as a result of a 2014 case, Burwell v. Hobby Lobby Stores.

But some religious objectors were not appeased by the compromise, arguing that even the step of notifying the insurer forced them to violate their beliefs.

The rules issued by the Trump administration in 2017 broadly expanded who could opt out of providing birth control coverage, and also made it optional for employers to provide an accommodation for employees to access birth control.

Much of Wednesday’s hearing centered on whether the Trump administration had the legal authority to expand the exemption under the ACA and another federal law, the Religious Freedom Restoration Act.

“What this case is about is not the resolution of a long-running dispute, but rather the assertion of vast agency authority at the expense of Congress and the courts,” said Pennsylvania Chief Deputy Attorney General Michael Fischer.   

U.S. Solicitor General Noel Francisco, who argued on behalf of the Trump administration, said the exemptions are authorized under the ACA and the Religious Freedom Restoration Act, and were issued “in the best traditions of this country’s commitment to religious liberty.”

Some of the justices appeared frustrated that the two sides have been unable to come to a compromise.

“Is it really the case that there is no way to resolve those differences?” Chief Justice John Roberts asked at one point.

The last time the mandate was heard at the court, in 2016, the justices sent it back to the lower courts and urged the parties to find a resolution.

Contraception is an essential component of health care. Its necessary coverage should not be lost to the whim of employers.
Kristyn Brandi, Physicians for Reproductive Health

Experts in reproductive health oppose the Trump rules and warn that allowing employers to deny coverage based on their personal beliefs will jeopardize the crucial gains made under the Affordable Care Act.

Before the ACA, contraceptives made up about 30% of women’s total out-of-pocket health care costs, according to the National Women’s Law Center. In 2013, the mandate saved women more than $1.4 billion in out-of-pocket expenses for birth control pills.

When cost is not a barrier to birth control, patients are better able to choose the method that meets their needs and have access to it consistently and affordably, said Kristyn Brandi, board chair of Physicians for Reproductive Health.

“Contraception is an essential component of health care. Its necessary coverage should not be lost to the whim of employers,” she said. “It not only allows people to plan and space their pregnancies in a way that is best for their health and their families, but also helps manage a variety of health conditions.”

Nearly all women use contraception at some point in their lives.

“It’s deeply concerning that in the middle of a public health crisis, the Trump administration is continuing to defend a policy that threatens access to birth control for millions of women,” said Alexis McGill Johnson, acting president of Planned Parenthood Action Fund. “This case highlights the lengths the administration will go to attack people’s fundamental right to control their own bodies, at a time when we should be coming together to support one another.”

A ruling in the case is likely to come this summer.

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