The Supreme Court on Wednesday upheld rules issued by the Trump administration that allow employers with religious or moral objections to deny women access to free birth control coverage.

The court’s 7-2 vote struck a blow against the birth control mandate, a hotly litigated regulation under the Affordable Care Act that requires most private health insurance plans to cover contraceptives without a copay. 

Under the judgment, between 70,500 and 126,400 women could lose access to no-cost birth control, according to government estimates. 

At issue in Trump v. Pennsylvania, consolidated with Little Sisters of the Poor v. Pennsylvania, were new rules established by the Trump administration that vastly expanded the types of organizations that could opt out of the mandate based on religious beliefs or moral objections. 

The states of Pennsylvania and New Jersey challenged the rules, arguing that they would have to cover the cost of birth control for people who lost coverage.

Justice Clarence Thomas, who wrote the opinion, said that the Trump administration “had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections.” He was joined by Chief Justice John Roberts, and Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh.

Justices Elena Kagan and Stephen Breyer filed a separate opinion concurring in the judgment.

Oral arguments were presented in May via teleconference ― one of the first times in history for the court ― due to the coronavirus pandemic. It was the third time that the birth control mandate reached the Supreme Court, but the first since Gorsuch and Kavanaugh ― appointed by President Donald Trump ― joined the bench.

Wednesday’s decision sent the case back to a lower court. Further attempts to block the Trump rules may soon follow.  

In a statement, Pennsylvania Attorney General Josh Shapiro, who challenged the Trump rules, said he was disappointed in the ruling but was not giving up. “We now return to the lower courts to address whether the exemptions are arbitrary and capricious,” he said. “This fight is not over.”

In a dissent, Justice Ruth Bader Ginsburg issued a stark warning about the potential impact of the ruling on employees. 

“[T]his Court 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,” she wrote, joined by Justice Sonia Sotomayor. “Faced with high out-of-pocket costs, many women will forgo contraception … or resort to less effective contraceptive methods.”

The mandate has been credited with significantly reducing birth control costs across the country. Before the Affordable Care Act, commonly known as Obamacare, 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.

Wednesday’s ruling was criticized by leading reproductive health and civil rights groups. 

“This is a shameful decision from the Supreme Court,” said Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project. “Denying employees and students coverage for birth control will limit their ability to decide whether and when to have a family and make other decisions about their futures. And it will exacerbate existing inequalities, falling hardest on people with the fewest resources and people of color.”

Mara Gandal-Powers, senior counsel at the National Women’s Law Center, said she was worried about the uncertainty created by the ruling. 

“Right now in the middle of a public health crisis and an economic crisis, not knowing whether you’re going to have that important health coverage when you go to pick up your prescription is really terrifying,” she said. “This isn’t what the intent of the Affordable Care Act was.” 


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