During oral arguments on May 6, before a U.S. Supreme Court working remotely amid the coronavirus crisis, Justice Ruth Bader Ginsburg had one question on her mind: What about the women?
It’s a question that was never really answered in more than an hour and a half of back and forth about statutory construction, administrative rule-making, and religious freedom. And yet it sits at the heart of a legal challenge to the Affordable Care Act’s mandate that women be provided no-cost contraceptives — a provision that provides birth control access to millions of women.
At issue in the case is whether the Trump administration can exempt any employer that objects on religious or moral grounds from having to provide insurance that covers the full range of birth control.
According to the administration, the religious freedom of employers would be unconstitutionally trampled upon unless they’re exempted from the requirement. According to the state of Pennsylvania, which defended the birth control mandate before the court, the administration’s rules were improperly enacted and go far beyond protecting religious beliefs to the potential detriment of millions.
Among the groundbreaking achievements of the Affordable Care Act was that it required basic health services to be provided at no cost. The Women’s Health Amendment specifically extended the mandate to a suite of reproductive health services, including access to all Food and Drug Administration-approved contraceptives.
Prior to the ACA, which also prohibits sex discrimination in health care, women had long paid more in insurance premiums and out-of-pocket costs, particularly for birth control. Because of the law, more than 61 million women have access to no-cost contraceptives, a mandate that saves women roughly $1.4 billion per year.
And it makes sense to cover contraceptives. They reduce unintended pregnancy and encourage birth spacing; they promote gender equality and are linked to higher educational attainment and increased earnings for women — outcomes that directly impact children and families.
Nonetheless, from the start, churches were exempt from having to provide the coverage. Religiously affiliated nonprofits like hospitals and universities subsequently said they should be exempt too. The Obama administration disagreed, saying that exempting them would subject employees to the religious views of their employers. But his administration devised a workaround: An affiliated organization could submit a form to its insurance provider or the federal government saying that it objected to the coverage, which in turn would allow the insurer to provide it directly to the employee. (The accommodation was later extended to closely held for-profit companies after Hobby Lobby sued.)
But many religious organizations still balked. Requiring them to formally object, they argued, would jumpstart a process to provide the coverage they objected to, making them complicit in providing that coverage. The ongoing dispute bounced around in the courts until the spring of 2017, when the Trump administration announced that it would fix things — with a clear indication that it would endeavor to give the objectors exactly what they wanted: a way to disregard the birth control mandate.
But the administration — via various departments that play a role in the ACA, including Health and Human Services — ultimately went further. Under rules rolled out that fall, religious organizations would be allowed to opt out without ever notifying anyone of their intentions — leaving women in the lurch with no notice that their birth control would no longer be covered. On top of that, the administration crafted a second carve-out that allows nearly any employer in the country to deny coverage based on “moral objections,” which could encompass pretty much anything.
That is a big problem, the National Women’s Law Center and a contingent of 54 other organizations argue in an amicus brief filed with the Supreme Court. The moral exemption “does nothing to circumscribe what types of convictions may be used to invoke the exemption, nor does it have any mechanism to permit oversight,” the brief reads. The rule would allow “an employer with a sincerely held moral conviction that women do not have a place in the workplace to simply stop providing contraceptive coverage.”
The 2017 rules sparked a whole new wave of lawsuits, culminating in two that were consolidated for the Supreme Court, which conducted the hearing by teleconference last week.
Arguing on behalf of the Trump administration was Solicitor General Noel Francisco, who told the justices that the Pennsylvania attorney general had not “identified anyone who would actually lose access to contraception as a result of these rules, I think presumably because … access to contraception is widely available in this country through many other means.”
The government estimates that somewhere between 75,000 and 125,000 women would lose coverage, though the assumptions underlying that estimate are flawed, in part because the courts have so far blocked the rules from taking full effect. And given that the rules also give a green light to any employer to deny coverage, the NWLC and other advocates say the actual number of women impacted could be far higher. “The Departments’ many faulty assumptions result in a grievous failure to capture the full scale and scope of harm.”
“The impending coronavirus-driven recession will make contraceptive coverage all the more critical as people become even more sensitive to cost constraints.”
The NWLC notes that the government’s assertion that birth control is widely available is misleading at best since access can be cost-prohibitive, particularly for young people, people of color, and those with low incomes — part of the reason the mandate was developed in the first place. They point to studies that reveal that 33 percent of Latinas, 39 percent of black women, and nearly 50 percent of black mothers say they could only afford $10 or less for contraceptives if required to pay for them, which is far below their actual cost — particularly for highly effective forms of contraception like the intrauterine device, the use of which has significantly increased since the ACA’s mandate took effect. “Before the ACA, women spent between 30 percent and 44 percent of their out-of-pocket health costs just on contraception,” the NWLC brief reads. “The impending coronavirus-driven recession will make contraceptive coverage all the more critical as people become even more sensitive to cost constraints.”
Despite the real-world harms to women that would arise from denying access to no-cost birth control, the oral arguments largely focused on other issues, including the role of the Religious Freedom Restoration Act in constraining coverage requirements and whether an arm of HHS can decide, at will, to exempt employers — and as such, hold power over who will receive birth control.
Which brings us back to Ginsburg’s question, aimed at each of the lawyers before the court: “You have just tossed entirely to the wind what Congress thought was essential, that is, that women be provided these … services, with no hassle, no cost to them,” she posited to Francisco. “Instead, you are shifting the employer’s religious beliefs, the cost of that, on to these employees who do not share those religious beliefs.”
“And I did not understand RFRA to authorize harm to other people, which is evident here, that … the women end up getting nothing,” she continued. “They are required to do just what Congress didn’t want.”
“I would disagree with the premise of your question because there’s nothing in the ACA … that requires contraceptive coverage,” Francisco responded. “Rather, it delegated to the agencies the discretion to decide whether or not to cover it in the first place.”
The government apparently believes that whether contraceptives are essential is a matter of debate.
Indeed, a main thrust of the government’s argument is that Congress didn’t require birth control coverage specifically, only that women’s health services be provided — Congress directed the health agency to come up with the list of essential services. The government apparently believes that whether contraceptives are essential is a matter of debate, perhaps unsurprising for an administration that has elevated birth control skeptics and proponents of abstinence education to policymaking positions.
Still, the argument seems to have resonated with the newest justice, Brett Kavanaugh, whose hostility to women’s reproductive rights was among the assets that got him the job. There are certainly “very strong interests on both sides” of the case, he said. Kavanaugh suggested that each administration should be free to use its discretion to decide how birth control should be covered since Congress didn’t lay out any particular requirement in the main text of the ACA. “It seems to me the judicial role is not to put limits on the agency discretion that Congress has not put there.”
Chief Justice John Roberts and Justice Stephen Breyer seemed frustrated by the arguments and in search of some middle ground. “I don’t understand why this can’t be worked out,” Breyer said. Several justices expressed concern that Trump’s legal justifications for the rules “sweep too broadly,” as Roberts put it.
Certainly, there is an argument to be made that the new rules are less about religious freedom and more about an overly broad power grab. The second of the two consolidated cases, Little Sisters of the Poor v. Pennsylvania, lends some credence to this idea.
The Little Sisters of the Poor are a Catholic order of nuns who run nursing homes. They were among the first to balk at the contraceptive mandate — and the Obama-era workaround — and quickly sued, asking for an exemption. They lost their bid in several courts before their case, consolidated with five others, made it to the Supreme Court in 2016. In its ruling, the court sent all the parties back to the drawing board to try to work out yet another accommodation; that process had stalled until the Trump administration came in and posted its sweeping new rules.
However, the nuns never really had any skin in the game. For starters, their insurance is covered by a “church plan,” which was always exempt from providing the coverage. But even if that weren’t the case, the nuns’ underlying legal challenge to the mandate was resolved in their favor back in 2018, when a judge granted a permanent injunction barring the government from ever requiring them to provide the coverage.
So, even though the Little Sisters were arguing before the Supreme Court last week as though they had some beef to settle, they aren’t at all impacted by the ongoing legal dispute, a fact that Michael Fischer, Pennsylvania’s chief deputy attorney general, pointed out to Justice Sonia Sotomayor. “Because it’s a church plan,” he said, “the government cannot enforce it. So even if they didn’t have their injunction, their employees would not receive contraception.”
“That’s an interesting point. I didn’t know that. So, the Little Sisters’ claim is actually moot here?” Sotomayor replied. “They lack … standing because they don’t have to provide it; neither does their insurance carrier, correct?”
“That’s correct,” Fischer said.
The Little Sisters may not have a legal role, but they do provide a sympathetic narrative with which to rally support for the broader rule changes. The nuns staged a spirited, well-organized photo-op outside the Supreme Court in 2016, and their supporters rallied again last week on the court steps amid the pandemic. In other words, focusing on the religious plight of nuns facing off against the contraceptive mandate — which isn’t actually an issue — has done well to obscure the problem with a rule that allows employers to opt out of coverage for any alleged moral objection. Indeed, just two justices — Ginsburg and Sotomayor — specifically mentioned the moral objection rule, and only one lawyer, Fischer, tried to focus the justices’ attention on it. Neither Solicitor General Francisco nor Paul Clement, the lawyer representing the Little Sisters, mentioned it.
That lack of attention, and the women who would be impacted if the rules are upheld, stood out for Brigitte Amiri, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project. “Really, what’s at issue is the human impact of denying contraception coverage to hundreds of thousands of women,” she said. “And Justice Ginsburg rightly focused in on that.”
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