The Supreme Court appeared split during feisty oral arguments Wednesday over the future of two Trump administration rules that advocates worry could limit access to contraception.
At issue are two rules that would allow any employer or university insurance plan to get an exemption from covering contraception for any moral or religious reason. The rules, which are currently blocked, would greatly expand exemptions to a contraceptive mandate under the 2010 health care law. That law requires most health plans cover birth control at no cost to patients.
The consolidated cases, Trump v. Pennsylvania and Little Sisters of the Poor v. Pennsylvania, are brought by defenders of the rules who argue they are necessary for protecting religious freedom.
They are the first cases to touch on the contraceptive mandate since the retirement of Justice Anthony M. Kennedy, who was seen as a swing vote in controversial cases, and the addition of two Trump picks, Justices Neil M. Gorsuch and Brett M. Kavanaugh.
Chief Justice John Roberts is likely the central figure in deciding this case, and seemed skeptical during oral arguments of the government’s reliance on the Religious Freedom Restoration Act of 1993, a bipartisan law that seeks to ensure religious freedoms are protected, as the key basis for its argument.
“I wonder if your reliance on RFRA is too broad,” he said to Solicitor General Noel Francisco, who argued on behalf of the administration.
Critics of the rules note, however, that RFRA does not address moral concerns, only religious beliefs, and could not be a basis for a moral objection to coverage. That point that was not fully addressed in the discussion.
Roberts sided with conservatives in a previous birth control case, the landmark 2014 case Burwell v. Hobby Lobby Stores, which ruled that closely held for-profit corporations that have moral or religious objections to contraception can be exempt from the contraceptive mandate.
He also seemed to take the middle ground in questioning Paul Clement, an attorney for the Little Sisters of the Poor.
“Neither side in this debate seems to want the exemption to work,” he said. “Is it really the case that there is no way to resolve those differences?”
The passionate arguments presented by the other justices seemed to fall more in line with their overall views, with the more liberal justices Sonia Sotomayor and Ruth Bader Ginsberg criticizing the rules.
Sotomayor highlighted that 75,000 to 150,000 people could lose birth control coverage if the rules were to take effect.
“If there is no substantial burden, how can the government justify an exemption that deprives these women of seamless coverage?” she asked.
Ginsberg, who called in from the hospital where she is recovering from an infection, said the rules shift an employer’s religious beliefs and additional costs onto employees who may not share those beliefs.
“The glaring feature of what the government has done in expanding this exemption is to toss to the wind entirely from what Congress intended,” she said. “Every time we have dealt with the subject, we have assumed that there would be a way to provide coverage that would not involve any cost-sharing by the individuals.”
Ginsberg referred to the accommodations already in place for some religious organizations like closely held for profits and nonprofits that allow employees to still get coverage.
The rules, if implemented, would let employers opt out of coverage so that workers could not get it. Under the Obama administration accommodations, workers still receive contraceptive coverage because insurers provide the benefit rather than exempt employers.
Justice Samuel A. Alito Jr.’s questioning of Michael Fischer, Pennsylvania chief deputy attorney general, was the sharpest of the justices. Alito seemed most amenable to the view of the Trump administration and the Little Sisters of the poor.
Alito pushed Fischer on whether Pennsylvania and New Jersey, the states represented in this case, would make any exceptions to contraceptive coverage for religious beliefs.
Fischer said it would violate the First Amendment if churches were unable to be exempt, but that these new rules overreached.
Kavanaugh called the language of the rules broad, but wondered if it was the court’s place to step in.
“The judicial role is not to put limits on agency discretion that the Congress has not put there,” he said.
Justice Clarence Thomas, who rarely speaks in arguments, wondered multiple times about the scope of nationwide injunctions and if the continued use of them, such as in this case to block the Trump administration rules, would block any federal policy and are too easy to get.