Health Law Daily ACA contraception coverage case heard before U.S. Supreme Court
Thursday, May 7, 2020

ACA contraception coverage case heard before U.S. Supreme Court

By Cathleen Calhoun, J.D.

Will the court find that certain nonprofits must provide birth control coverage?

On May 6, 2020, the U.S. Supreme Court heard oral arguments, via teleconference, in the case involving contraception coverage under the Affordable Care Act (ACA). The justices hearing the arguments in Little Sisters of the Poor v. Pennsylvania will soon resolve the issue of whether regulations allowing certain nonprofits a moral exemption from providing contraception health insurance coverage are allowable.

The Health Resources and Services Administration determined years ago that health plans covered by the ACA (P.L. 111-148) must provide contraceptive services. This mandate included a narrow exemption for certain religious organizations. In 2017, President Trump issued an executive order directing the relevant agencies to consider amending regulations to address conscience-based objections. These agencies promulgated two interim final rules (IFRs) that expanded the religious exemptions authorizing employers with religious or moral objections to limit employees’ access to health insurance coverage for contraception (See Contraception coverage exemptions extended for objecting employers on religious, moral grounds, October 11, 2017).

Third Circuit decision. In 2019, the Third Circuit court held that Pennsylvania and New Jersey were likely to succeed in proving that the agencies did not follow the Administrative Procedure Act (APA) and that the regulations are not authorized under the ACA or required by the Religious Freedom Restoration Act (RFRA). The Third Circuit affirmed the district court’s order preliminarily enjoining the rules’ enforcement nationwide (See States likely to succeed in lawsuit challenging contraceptive exemption regulations, July 15, 2019).

Appeals. On October 1, 2019, the Little Sisters of the Poor Saints Peter and Paul Home filed a petition for writ of certiorari that was granted on January 17, 2019. On October 7, 2019, the Trump Administration also filed a petition for writ of certiorari with the U.S. Supreme Court that was granted on January 21, 2020. The two were consolidated.

Oral arguments. Two questions were presented before the court: (1) whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court; and (2) whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage

Questioning reoccurred often on several issues during the oral arguments—religious freedom, burdens to women, and the reach of agency rules. All nine justices asked questions.

Religious freedom. Chief Justice Roberts and Justice Ginsberg asked about the scope of religious freedom, among others. Chief Justice Roberts said, "...I wonder if your reliance on RFRA is too broad." Justice Ginsberg said, "And in this area of religious freedom, the major trend is not to give everything to one side and nothing to the other side. We have had a history of accommodation, tolerance here, respect for the employer's workers and students who do not share the employer's or the university's objections to contraceptives." Justice Sotomayor stated, "HHS decided that contraceptives were a preventive service required under the Act. Now you say it has to take care to both promulgate the Act and accommodate religious objections."

Burdens to women. Justices Sotomayor, Justice Ginsberg, and Justice Kagan noted the burden on women. "You have just tossed entirely to the wind what Congress thought was essential, that is, that women be provided these service—services, with no hassle, no cost to them. Instead, you are shifting the employer's religious beliefs, the cost of that, on to these employees who do not share those religious beliefs," Justice Ginsberg said. Justice Sotomayor echoed Justice Ginsberg, and added, "But, in your calculus, what you haven't considered or told me about is the effect on women—on women who can't—who—who now have to go out…and search for contraceptive coverage if they can't personally afford it. And I just wonder if I—if there is no substantial burden, how can the government justify an exemption that deprives those women of seamless coverage?"

Reach of administrative rules. On moral exemptions, Justice Ginsberg asked, "…Where would the moral exemption come from?" Justice Breyer said of the rule, "I don't understand why this can't be worked out. But, if it can't, from what's been said so far, it seems to me the proper legal box to work it out in is whether this particular rule is arbitrary, capricious, or an abuse of discretion."

An opinion is expected this summer.

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