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Supreme Court upholds Trump administration birth control rules

Court expands employer exemptions from health plan contraception coverage

Supreme Court building
Supreme Court building (Bill Clark/CQ Roll Call)

The Supreme Court in a 7-2 decision upheld two Trump administration rules that would expand the types of employers that could be exempt from covering contraception under their health plans.

The two controversial rules issued by the departments of Health and Human Services, Labor and Treasury have never taken effect. They would expand religious and moral exemptions to the 2010 Affordable Care Act’s  requirement that employee health plans cover birth control. 

The consolidated cases of Trump v. Pennsylvania and Little Sisters of the Poor v. Pennsylvania are the first to tackle the ongoing issue of the breadth of the health law’s contraceptive coverage since the retirement of Justice Anthony M. Kennedy, who was viewed as a swing vote in controversial cases, and the addition of two Trump picks, Justices Neil M. Gorsuch and Brett M. Kavanaugh.

The health care law requires that most health plans cover birth control at no cost to patients. The cases were brought by groups who argued the rule was essential to protecting religious liberty under a 1993 law known as the Religious Restoration Freedom Act of 1993 or RFRA.

“The only question we face today is what the plain language of the statute authorizes. And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions,” said the majority opinion, written by Justice Clarence Thomas.

The opinion, which is joined by Chief Justice John Roberts as well as Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh, argues that “it is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA.”

The decision comes as Roberts has sided with the liberal wing of the court in multiple high profile cases this term in cases dealing with abortion rights, LGBT rights, and immigration. But Roberts, here, sided with the conservative wing of the court.

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Alito, issued a concurrence joined by Gorsuch.

“I would hold not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption (or something very close to it),” Alito wrote.

Justice Elena Kagan also issued a concurrence joined by Stephen Breyer.

“I would uphold [Health Resources and Services Administration’s] statutory authority to exempt certain employers from the contraceptive-coverage mandate, but for different reasons than the Court gives,” she wrote. The departments “have wide latitude over, so long as they satisfy the requirements of reasoned decision making. But that ‘so long as’ is hardly nothing. Even in an area of broad statutory authority—maybe especially there—agencies must rationally account for their judgments.”

Justice Ruth Bader Ginsberg in her dissenting opinion, joined by Sonia Sotomayor, criticized the ruling.

“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,” she 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.”

This is the third time that the high court has heard arguments over the birth control mandate.

In 2014, the Supreme Court decided in Burwell v. Hobby Lobby Store that closely held for-profit corporations with religious objections could be exempted from the coverage mandate.

But in 2016, the high court remanded Zubik v. Burwell, sending seven consolidated cases back to their respective districts without resolving the issue of whether religious institutions other than churches should be exempt from the mandate. 

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