Sister Loraine Marie Maguire, of Little Sisters of the Poor, (front, with glasses, at mic), addressing media outside the U.S. Supreme Court, on the day of arguments in the case Zubik v Burwell, which challenges the Health and Human Services Contraception Mandate on behalf of religious nonprofit organizations. March 23, 2016. (Photo: Diego M. Radzinschi/ALM) Sister Loraine Marie Maguire, of Little Sisters of the Poor, (front, with glasses, at mic), addressing media outside the U.S. Supreme Court on March 23, 2016, on the day of arguments in the case Zubik v Burwell birth control mandate case. (Photo: Diego M. Radzinschi/ALM)

The Trump administration had legal authority to allow private employers with moral or religious objections to opt out of providing birth control health insurance required under Affordable Care Act (ACA) implementation regulations, the U.S. Supreme Court ruled today.

“We hold today that the departments had the statutory authority to craft that [religious] exemption, as well as the contemporaneously issued moral exemption,” Justice Clarence Thomas wrote for a 7-2 majority. “We further hold that the rules promulgating these exemptions are free from procedural defects.”

Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, dissented.

“In accommodating claims of religious freedom, this court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs,” Ginsburg wrote. “Today, for the first time, the court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”

Justice Elena Kagan, joined by Justice Stephen Breyer, concurred in the majority’s result but not its reasoning.

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The court’s decision marked the third time the justices have considered the contraceptive insurance requirement since the federal law was enacted in 2010. The government estimates that, under the Trump administration’s expanded exemptions, between 70,500 and 126,400 of the 59 million women covered by employer-sponsored health plans, or up to 0.2% of the women in those plans, would lose access to cost-free birth control in one year.

This latest dispute centered on the administration’s 2017 effort to grant categorical exemptions, sometimes called the “conscience exemptions,” to for-profit and nonprofit employers. The Obama administration had created narrower exemptions for churches and other houses of worship, and offered “accommodations,” for religiously affiliated organizations, such as hospitals and universities, through which they would not directly contribute to the cost of the insurance but would let plans or the government know that women had no contraceptive coverage.

In the combined cases Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania, the states of Pennsylvania and New Jersey challenged the Trump exemptions, arguing that the exemptions were not authorized — as claimed by the administration — by the Affordable Care Act and the Religious Freedom Restoration Act.

The states also argued that the Trump administration had violated the federal Administrative Procedure Act when it issued the first interim rules in 2017, expanding the exemptions without first providing notice and an opportunity for public comment. That violation, they argued, made the final rules in 2018 invalid. The 3rd U.S. Circuit Court of Appeals ruled in favor of the states and upheld a nationwide injunction against enforcement of the new exemption regulations.

During telephonic arguments in May, U.S. Solicitor General Noel Francisco, defending the Trump administration, countered, “There is nothing in the ACA” that requires contraceptive coverage. The ACA delegates to the enforcing agencies the decision whether to provide it, he said.

The Trump administration, in its appeal, also had asked the justices to weigh in on the appropriateness of nationwide injunctions. The court did not reach that issue in Wednesday’s ruling.

Challenging the administration’s exemptions, Pennsylvania Chief Deputy Attorney General Michael Fischer argued that “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 argued.

Chief Justice John Roberts Jr. and Justice Stephen Breyer voiced frustration at seeing the contraceptive insurance issue come before them once again.

“Well, the problem is neither side in this debate wants the accommodation to work,” Roberts said at one point. “Is it really the case that there’s no way to resolve those differences?”

The point of the Constitution’s religion clauses is “to try to work out accommodations,” said Breyer. “I don’t understand why this can’t be worked out.”

Ginsburg, in a comment to Kirkland & Ellis’s Paul Clement, representing Little Sisters, stated, “At the end of the day, the government is throwing to the winds women’s entitlement  to seamless, no cost to them, contraceptive coverage. 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.”

— Read Religious Group Employers Required to Offer Contraceptive Coverageon ThinkAdvisor.

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