The U.S. Supreme Court on Wednesday will consider whether the Trump administration may allow almost any employer to deny workers access to free birth control by citing religious or moral objections.

Oral arguments will be presented via teleconference ― one of the first times in history ― due to the coronavirus pandemic. The public can listen to the audio in real time on C-SPAN

The case, Trump v. Pennsylvania, consolidated with Little Sisters of the Poor v. Pennsylvania, centers on the birth control mandate, a hotly disputed regulation under the Affordable Care Act that requires most private health insurance plans to cover Food and Drug Administration-approved forms of birth control without a copay. 

The mandate has been credited with dramatically reducing birth control costs in the U.S. It has also triggered a litany of lawsuits over the rights of employers who object to contraception on religious grounds. This is the third time the mandate has reached the Supreme Court, but the first since conservative Justices Neil Gorsuch and Brett Kavanaugh joined the bench. 

In 2017, the Trump administration undercut the Obama-era mandate with new regulations that allowed nearly any private employer, university or insurer to use religious or moral beliefs as a basis for denying contraceptive coverage. Lower courts have temporarily blocked these rules from going into effect.

The effort to roll back birth control coverage comes amid a wider conservative movement to use religious freedom to exempt businesses from laws governing nondiscrimination in hiring, public accommodation, adoption and education.

If the Trump rules are allowed to stand, advocates said, it will undermine people’s autonomy over their reproductive choices and threaten their economic security, which is directly tied to the ability to plan, delay, space and prevent pregnancies. Nearly all women use contraception at some point in their lives. 

“Birth control is incredibly important,” said Mara Gandal-Powers, senior counsel at the National Women’s Law Center. “The benefit, which ensures that people get coverage without out-of-pocket costs, has changed the way people are able to access birth control. When cost isn’t a barrier, they can get the method that they decide is right for them.”

Battle Over Birth Control

Under the Obama administration, houses of worship were already exempt from the birth control mandate. Other religious nonprofits could seek a workaround so that they didn’t have to provide coverage, but employees could still access free contraceptive care. In those cases, insurance companies would pay for the coverage. 

This accommodation was extended to some for-profit corporations as a result of a landmark Supreme Court decision, Burwell v. Hobby Lobby Stores. In the 2014 case, the court found that requiring family-owned businesses to pay for insurance coverage for birth control violated the Religious Freedom Restoration Act, a federal law protecting religious liberty. 

Still, many religious groups were not satisfied with the accommodation, arguing that even if they weren’t directly paying for the contraceptive coverage, they would still be complicit in actions that violated their beliefs. The Supreme Court considered that argument in Zubik v. Burwell, but ultimately punted and sent the case back to the lower courts.

Then Donald Trump got elected. In 2017, his administration pushed out expansive new rules granting an exemption to almost any employer that objected to covering contraception services on the basis of sincerely held religious beliefs or moral convictions. It also made it optional for employers to provide an accommodation for employees seeking birth control coverage.

The interim rules, which took effect immediately, were issued without public notice or the opportunity for comment as is generally required.

Pennsylvania and New Jersey challenged the rules, arguing that their states would be forced to shoulder the costs of providing birth control to people who lost coverage, as well as thousands of unplanned pregnancies. A Philadelphia federal judge blocked the federal rules in 2019, and the two states won a nationwide injunction

“At the heart of this case is that the Trump administration overreached,” said Josh Shapiro, the attorney general of Pennsylvania, whose team will argue the case on Wednesday. “It violated the rule of law and harmed women by denying them the guarantee that Congress gave them to the medicine that they need.”

One of the key questions in front of the court is technical in nature: Are the rules invalid given that the Trump administration initially issued them without giving the public a chance to comment? 

“This isn’t just a desire of how the process should play out,” Shapiro said. “This is how the process is legally required to play out.” 

The Trump administration has defended its decision to skip the notice and comment period for the interim rules, arguing that the public still had an opportunity to comment before the final rules were issued in 2018. But the final version of the rules were ”materially identical to the interim rules, lawyers for Pennsylvania and New Jersey countered, suggesting that the comment period was perfunctory. 

“So the dispute becomes, did the agency already have a closed mind?” said Brigitte Amiri, deputy director for the ACLU Reproductive Freedom Project. “They put out notice and comment for the final rules, but did they really consider them?”

What’s At Stake

Being able to plan the size of your family using contraception is considered one of the great public health achievements of the 20th century. When people have smaller families and longer gaps between births, they and their children are healthier and their economic circumstances improve.

But cost has long been a barrier for people seeking contraception. The birth control mandate was intended to close that gap, and it has. In 2013, the mandate saved U.S. women more than $1.4 billion in out-of-pocket expenses for birth control pills, according to a report from the University of Pennsylvania.

A cross section of reproductive health groups have filed amicus briefs in the case, urging the justices not to undo the progress that’s been made.

“Allowing employers to exclude all or certain types of contraceptive methods would compromise women’s ability to consistently use the methods that work best for them, thus putting them at heightened risk of unintended pregnancies and interfering with their ability to time and space wanted pregnancies,” the Guttmacher Institute wrote in its brief. “That, in turn, would increase the risk of detrimental health outcomes for both women and their children, and would have negative social and economic consequences by interfering with women’s ability to achieve their educational, professional and family goals.”

Some business leaders have also come out in opposition to the Trump rules, arguing that contraception allows people to pursue educational and professional goals and contribute to the economy. Women in particular make up more than half of U.S. jobholders, and their labor accounted for about 40% of the United States’ annual gross domestic product in 2017. 

“American women contribute to economic innovation, productivity, and growth,” the U.S. Women’s Chamber of Commerce and the National Association for Female Executives wrote in an amicus brief. “These outcomes would not be possible without women’s ability to control their own reproductive health, including access to contraception.” 

It’s unclear when the justices will issue a ruling, but it will likely be this summer.  

The Supreme Court is also poised to rule on another case with wide implications for reproductive rights. A decision in June Medical Services v. Russo, which deals with the constitutionality of a Louisiana law requiring abortion providers to have admitting privileges at nearby hospitals, is expected in June.

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