Supreme Court Upholds Trump's Rollback of Birth Control Coverage Mandate

By Susannah Luthi, Politico

08 July 20

The Supreme Court, in its 7-2 ruling, sought to resolve a long-running legal battle that previously vexed the justices.

he Supreme Court on Wednesday upheld the Trump administration’s broad rollback of Obamacare rules requiring employers to provide free birth control to women, in a major victory for religious groups allied with President Donald Trump.

The Supreme Court, in its 7-2 ruling, sought to resolve a long-running legal battle that previously vexed the justices — how to strike the right balance between ensuring access to birth control and safeguarding religious freedom protections. But the court's decision appears likely to revive debate over the culture war issue as the presidential election kicks into gear.

The decision allows the Trump administration to move forward with rules that would allow virtually any employer to claim a religious or moral exemption to providing birth control coverage. As a result, between 70,000 and 126,000 women could lose free birth control coverage, according to previous administration estimates.

"It is clear from the face of the statute that the contraceptive mandate is capable of violating [the religious freedom laws]," Justice Clarence Thomas wrote in the opinion.

Justices Elena Kagan and Stephen Breyer agreed that the Trump administration had the authority to grant religious exemptions to the birth control mandate, but they said the case should be sent back to lower court for further review. In a concurring opinion written by Kagan, they questioned whether the Trump administration followed proper administration procedure in creating them said the carve out is overly broad and "causes serious harm" to birth control access.

Justice Ruth Bader Ginsburg in a sharp dissent joined by Justice Sonia Sotomayor said the decision favored religious freedom to the detriment of individual rights.

“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,” Ginsburg wrote.

The decision is the latest legal twist in the battle over birth control coverage — and the third time the issue has come before the Supreme Court since 2014. During May oral arguments conducted by telephone because of the coronavirus pandemic, the justices appeared frustrated that the issue had not been settled.

The Trump administration’s rollback of Obama-era birth control coverage rules, announced almost three years ago with the support of religious groups, was quickly blocked by a federal judge following a lawsuit by attorneys general in New Jersey and Pennsylvania. A federal appellate court later upheld the ruling. The Supreme Court took up the case at the request of the Little Sisters of the Poor, an order of Catholic nuns who fought the Obama-era birth control rules and supported Trump’s rewrite.

The fight stems from the Obama administration’s interpretation of the Affordable Care Act's mandate that heath plans cover preventive services at no extra cost. Following the advice of a scientific panel, the Obama administration in 2011 said virtually all health plans must include free birth control coverage. Since then, at least 62 million women have received free birth control coverage through workplace plans, according to the National Women's Law Center.

The Obama administration had exempted houses of worship and sought to make other accommodations for religiously affiliated groups like hospitals and schools. However, those groups argued the workarounds still forced them to violate their religious beliefs because they would still have to play a role in securing birth control coverage for their employees.

In 2014, the Supreme Court extended an exemption to closely held for-profit companies in its Burwell v. Hobby Lobby decision. Two years later, a deadlocked court punted on a similar challenge raised by religious nonprofits, including the Little Sisters. The court told the groups to find a compromise, but Trump overhauled Obama's policy the following year, igniting this latest court battle.

In a preview of election season messaging, conservative groups celebrated a decision that drew equally strong contamination from progressive and reproductive rights groups. Marjorie Dannenfelser, president of the anti-abortion Susan B. Anthony List, called it a “major victory” for Trump.

“We commend President Trump for standing strong for the Little Sisters of the Poor – his record stands in stark contrast to that of Joe Biden, who helped launch this assault as Obama’s vice president nearly a decade ago,” Dannenfelser said in a statement.

Alexis McGill Johnson, president and CEO of Planned Parenthood Action Fund, said the “egregious" ruling would make birth control access more difficult for vulnerable workers during the pandemic.

“This decision will only make life harder for the very people who are keeping our economy afloat during this pandemic and fighting in the streets for the right to control their bodies and lives,” she said in a statement.

The conservative justices expressed optimism that their decision in the case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, would put the issue to rest.

“After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate,” Thomas wrote.

Mother Lorraine Marie Maguire of the Little Sisters, which run homes for elderly low-income people, said the organization was "overjoyed" by the ruling,

“Our life’s work and great joy is serving the elderly poor and we are so grateful that the contraceptive mandate will no longer steal our attention from our calling," she said.