U.S. Supreme Court Chief Justice John Roberts Jr. today expressed exasperation at the failure of the federal government and religious organizations to resolve their differences over contraceptive benefits access rules.
Federal regulations that implement a women’s health benefits provision in the Affordable Care Act, now require most employers to provide enrollees with access to contraceptive products and services with no out-of-pocket costs. The Trump administration has developed regulations that exempt employers that object to use of birth control from the mandate.
During oral arguments on two cases involving battles over the federal contraceptive benefits access rules, Roberts raised concerns about whether the Trump administration’s effort to exempt employers with objections to the mandate might “sweep too broadly.”
“I didn’t understand the problem at the time of Zubik [v. Burwell], and I’m not sure I understand it now,” said Roberts, who may hold the decisive vote on the cases: Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania.
The chief justice — speaking to Kirkland & Ellis partner Paul Clement, who represented Little Sisters — was referring to the 2016 Supreme Court case, Zubik v. Burwell.
Religious nonprofits, which objected to the birth control coverage mandate, brought the Zubik case to challenge a government accommodation that allowed them to opt out of the coverage requirement if they notified their insurers or plan administrators of their objections. The religious nonprofits said that the notification form, which the insurers or administrators would use to help affected workers get another source of contraceptive coverage, made them complicit in providing the coverage.
The justices did not resolve the issue; instead, they sent the cases back to the lower courts to find a compromise.
“Well, the problem is neither side in this debate wants the accommodation to work,” Roberts said at one point during Wednesday’s arguments. “Is it really the case that there’s no way to resolve those differences?”
At the core of the latest fight are rules granting categorical exemptions from the coverage for for-profit and nonprofit employers that have religious as well as moral objections to the coverage. Pennsylvania and New Jersey have challenged the exemptions, arguing that the exemptions are not authorized — as claimed by the Trump administration—by the Affordable Care Act and the Religious Freedom Restoration Act.
The states also claimed the Trump administration violated the federal Administrative Procedure Act, when it issued the first interim rules without providing notice and an opportunity for public comment. The 3rd U.S. Circuit Court of Appeals ruled in favor of the states and upheld a nationwide injunction against enforcement of the interim rules.
Because of COVID-19 work-at-home rules, the court heard oral arguments on the cases through a teleconference system. Today was the third time the justices have heard telephonic arguments in the coronavirus era.
Justice Stephen Breyer echoed Roberts’ frustration with the continuing fight over the birth control benefits mandate.