High court poses tough questions, and Judge Ginsberg participates from the hospital.
The U.S. Supreme Court heard oral arguments via live streaming on the requirement under the Affordable Care Act (ACA) that employer-provided health insurance plan provide coverage for birth control. The case out of the 3rd circuit—Little Sisters of the Poor—was appealed to the high court and the petition for writ of certiorari was granted on January 17, 2020. On October 7, 2019, the Trump Administration filed a petition for writ of certiorari with the U.S. Supreme Court and it was granted on January 21, 2020. The two were consolidated.
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.
The justices had differing focuses. Justice Ginsberg, in the hospital for a benign gallbladder condition, questioned whether there was a dismissal of Congress’ intent and said, "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." Justices Breyer and Thomas both asked about the standards that govern when the agency can make exceptions and how and what they must look like. Justice Thomas also posed questions about whether the lower court was correct to block Trump's rules nationwide. Chief Justice Roberts questioned whether the Trump administration’s rule might be too broad.
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