The US Supreme Court will consider on Wednesday whether the Trump administration can 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 C-SPAN.
The case, Trump v. Pennsylvania, consolidated in Little Sisters of the Poor v. pennsylvania, centered on the birth control mandate, a hotly contested regulation under the Affordable Care Act that requires most private health insurance plans to cover Food and Drug Administration-approved birth control methods without a copay.
The order has been credited with dramatically reducing birth control costs in the U.S. It has also triggered a litany of lawsuits on 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 narrowed the Obama-era mandate with new regulations that allow almost 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 taking effect.
The effort to roll back birth control coverage comes amid a broader conservative movement to use religious freedom to exempt businesses from laws governing nondiscrimination in hiring, public accommodations, adoption and education.
If Trump’s policies are allowed to stand, advocates say, 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 avoid pregnancies. Almost all women use contraception at some point in their lives.
“Birth control is very important,” says Mara Gandal-Powers, senior counsel at the National Women’s Law Center. “The benefit, which ensures people can get coverage without out-of-pocket costs, has changed the way people access birth control. When cost is not a barrier, they can get the way they decide is right for them.”
Battle on Birth Control
Under the Obama administration, houses of worship have been exempted from the birth control mandate. Other religious nonprofits may seek a solution so that they no longer have to provide coverage, but employees can still access free contraceptive care. In those cases, insurance companies will 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. Naa 2014 caseThe 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 that protects religious freedom.
However, many religious groups are unhappy with the accommodation, arguing that even if they don’t directly pay for contraceptive coverage, they would still be complicit in actions that violate their beliefs. The Supreme Court considered that argument in Zubik v. Burwell, but was ultimately acquitted and sent the case back to the lower courts.
Then Donald Trump was elected. In 2017, his administration pushed through sweeping new rules that provide a exemption to almost any employer who objects to coverage of contraceptive services based on sincerely held religious or moral convictions. It also made it optional for employers to provide accommodations for employees seeking birth control coverage.
The temporary rules, which take effect immediately, were issued without public notice or opportunity for comment as is normally required.
Pennsylvania and New Jersey challenged the rules, arguing that their states would be forced to cover the costs of providing birth control to people who lost coverage, as well as thousands of unplanned pregnancies. A federal judge in Philadelphia blocked the federal rules in 2019, and two states won a nationwide injunction.
“At the heart of this case is that the Trump administration overreached,” said Josh Shapiro, Pennsylvania’s attorney general, whose team will argue the case on Wednesday. “It violates the rule of law and hurts women by denying them the guarantee Congress gave them of the medicine they need.”
One of the main questions before the court is technical in nature: Are the rules invalid because the Trump administration initially issued them without giving the public a chance to comment?
“It’s not just a desire for how the process should play out,” Shapiro said. “This is how the process is legally required to play.”
The Trump administration has defended its decision to skip the notice and comment period for the interim rules, arguing that the public still has an opportunity to comment. before the final rule was released in 2018. But the final version of the rules is ”identical material” In the interim rules, attorneys for Pennsylvania and New Jersey objected, suggesting that the comment period remains unchanged.
“So the misunderstanding becomes, has the agency become closed-minded?” said Brigitte Amiri, deputy director for the ACLU Reproductive Freedom Project. “They put out notice and comment for the final rules, but are they really considering them?”
What’s at Stake
The ability to plan your family size using contraception is considered one of the great public health achievements of the 20th century. When people have smaller families and longer intervals between births, they and their children are healthier and their economic conditions 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 US women more than $1.4 billion in out-of-pocket costs for birth control pills, according to a report from University of Pennsylvania.
A cross section of reproductive health groups filed an amicus brief in the case, urging the justices not to undo the progress that has been made.
“Allowing employers to exclude all or certain types of contraceptive methods would compromise women’s ability to continue to use the methods that work best for them, thus putting them at increased risk of unintended pregnancy and interfering with their ability to time and space desired pregnancy,” the Guttmacher Institute wrote in its brief. “That, in turn, will increase the risk of detrimental health outcomes for both women and their children, and will have negative social and economic consequences by interfering with women’s ability to achieve their goals in education, professional and family.”
Some business leaders have also come out in opposition to Trump’s policies, 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 US job owners, and their labor accounted for about 40% of the United States’ annual gross domestic product in 2017.
“American women contribute to economic change, productivity, and growth,” the US Women’s Chamber of Commerce and the National Association for Female Executives wrote in an amicus brief. “These results would not be possible without women’s ability to control their own reproductive health, including access to contraception.”
It is unclear when the justices will issue a decision, but it is likely this summer.
The Supreme Court is also poised to rule on another case with far-reaching implications for reproductive rights. A decision on June Medical Services v. Russowhich discusses the constitutionality of a Louisiana law requiring abortion providers to have admitting privileges at nearby hospitals, is expected in June.
