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The Trump administration is free to let employers deny their workers birth control coverage if they have religious or moral objections, the Supreme Court ruled Wednesday.
The 7-2 decision caps off years of lawsuits over the Affordable Care Act’s so-called “birth control mandate.” Ever since the Obama administration required employers to offer their workers contraceptive coverage nearly a decade ago, religious liberty proponents and reproductive rights advocates have been locked in a fight over which employers should be exempt from that requirement. Over the years, the government has given churches and other houses of worship, as well as some other employers, ways to skirt that requirement.
But in 2017, the Trump administration issued new rules that expanded the number of organizations who can refuse to cover their employees’ birth control. Under those rules, private employers with sincerely held religious and moral objections are exempt from the mandate.
Pennsylvania and New Jersey sued over those rules, and won in a lower court. But the Trump administration and the Little Sisters of the Poor — a Catholic religious group and an icon among conservatives for their opposition to the birth control mandate — asked the Supreme Court to overturn that ruling.
In the majority opinion, Justice Clarence Thomas ruled that the Departments of Health and Human Services, Labor, and Treasury did have the authority to carve out those exemptions.
“The only question we face today is what the plain language of the statute authorizes,” Thomas wrote. “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.”
The reliably conservative Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh all joined Thomas’ opinion, as did Chief Justice John Roberts (who recently sided with the liberals in multiple cases).
Justice Elena Kagan also voted with the majority but wrote a separate opinion to explain why. Justice Stephen Breyer joined her opinion. Both of those justices typically vote with the liberal wing of the court.
In her concurring opinion, Kagan suggested that the exemptions could be challenged again, for potentially being too “arbitrary and capricious.”
“For example, the Departments allow even publicly traded corporations to claim a religious exemption,” she wrote. “That option is unusual enough to raise a serious question about whether the Departments adequately supported their choice.”
Josh Shapiro, Pennsylvania’s attorney general, vowed to use that kind of argument to continue fighting the restrictions now that the case will return to a lower court.
“Our case is about an overly broad rule that allows the personal beliefs of CEOs to dictate women’s guaranteed access to contraceptive medicine,” Shapiro tweeted, adding, “And I will continue this battle on behalf of women everywhere.”
Justice Ruth Bader Ginsburg, meanwhile, dissented in an opinion joined by Justice Sonia Sotomayor. In that dissent, Ginsburg pointed out the government has estimated between 70,500 and 126,400 women could lose their “no-cost contraceptive services” if more employers were exempt from providing it.
“This court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets,” she wrote.
Ginsburg made history back in May, when she called into the arguments over the case — held over the phone, due to the coronavirus pandemic — from the hospital. At the time, she was recovering from a “non-surgical treatment” for a benign gallbladder condition.
Ginsburg wasted no time making it clear where she stood on the case.
“You are shifting the employer’s religious beliefs — the cost of them — onto the employees,” Ginsburg told then-Solicitor General Noel Francisco. Women who lose birth control coverage, she added, will likely be forced to hunt for coverage from government programs like Medicaid or pay for their health care out of pocket. “The women end up getting nothing.”
Cover: In this Aug. 26, 2016, file photo, a one-month dosage of hormonal birth control pills is displayed in Sacramento, Calif. (AP Photo/Rich Pedroncelli, File)