Supreme Court Hears Arguments Over Birth Control Benefits Mandate

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.

(Related: Obama Administration Turns Contraceptive Fight Over to Trump)

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.

“The point of the religion clauses is to try to work out accommodations,” he told Clement. “I don’t understand why this can’t be worked out.”

Breyer suggested that the states brought the wrong type of challenge to the coverage exemptions. The “proper legal box,” he indicated, would be a challenge to the exemptions as arbitrary and capricious because insurers, women, religious groups and taxpayers all claim some kind of injury.

Justice Ruth Bader Ginsburg, who is recovering from a gallbladder condition at Johns Hopkins Hospital, was able to participate through the teleconference system.

“At the end of the day, the government is throwing to the winds women’s entitlement  to seamless, no cost to them, contraceptive coverage,” Ginsburg told Clement. “This idea that the balance has to be all for Little Sister-type organizations and not at all for women seems to rub against our history of accommodation, tolerance and respect for divergent views.”

U.S. Solicitor General Noel Francisco, defending the Trump administration, told Ginsburg that he disagreed with her view. “There is nothing in the ACA” that requires contraceptive coverage, he argued. The Obama-era law delegates to the enforcing agencies the decision about whether to require plans to provide that kind of coverage, he said.

Pennsylvania Chief Deputy Attorney General Michael Fischer said “the moral and religious exemptions rest on sweeping claims of authority.” He said they would allow any employer to opt out entirely from providing the coverage, including for “vaguely defined moral beliefs.”

The prior rules, Fisher said, struck a balance. “This case is not the result of a long-running dispute but an extension of authority inconsistent with Congress and the courts,” he said.

The Trump administration also asked the justices to examine the nationwide injunction entered by the district court against the new exemptions. Justice Clarence Thomas, who has questioned the legitimacy of those injunctions, asked the only questions about national injunctions during Wednesday’s arguments.

Clement, in response to Thomas, said that type of injunction is “inappropriate” in cases — like the one before the court — where there have been years of litigation in which courts have not come to uniform decisions in the lower courts. In such cases, he said, nationwide injunctions are “not consistent with equity practice or the way the judicial system works.”

The court scheduled 60 minutes for the two contraceptive benefits cases but ended up letting arguments go on for 100 minutes.

— Read Religious Group Employers Required to Offer Contraceptive Coverage, on ThinkAdvisor.

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