For the third time in six years, a divided Supreme Court heard arguments Wednesday over whether employers with religious or moral objections to contraception can be compelled under the 2010 Affordable Care Act to provide no-cost access to birth control to their workers.
And also for the third time, the case at issue arose out of Pennsylvania.
But a lot has changed in the years since the high court delivered its first ruling in a case involving a Lancaster County cabinet maker that fought alongside crafting chain Hobby Lobby in 2014.
The White House, under a different administration, has switched sides in the fight. The court’s conservative majority has become more firmly entrenched. And a global coronavirus pandemic disrupted centuries of high court tradition, forcing a first: oral arguments by phone that were livestreamed Wednesday over the internet.
Specifically, the question presented to the court stemmed from a lawsuit brought by the attorneys general of Pennsylvania and New Jersey objecting to President Donald Trump’s effort in 2017 to expand existing exemptions under the law that allowed churches and some closely held private businesses whose owners had religious objections to opt out.
Under the new proposals, virtually all employers ranging from small businesses to Fortune 500 companies could cut off no-cost contraceptive care citing any number of reasons.
A federal judge in Philadelphia blocked the new rules the day they were set to go into effect, finding that as many as 127,000 women could potentially lose coverage.
But Wednesday’s court session underscored just how ideologically divided the justices have become since they last examined the issue and the extraordinary nature of how pandemic-era proceedings have played out over the past week.
Justice Ruth Bader Ginsburg participated from a hospital bed in Maryland, where she was recovering from a gallstone infection. She still opened the hearing with a concerted attack on the Trump administration’s case.
“The glaring feature of what the government has done in expanding this exemption is to throw to the wind entirely Congress’ instruction that women need and shall have seamless, no-cost comprehensive coverage,” she said. The new regulations “leave women to hunt for other government programs that might cover them.”
But repeatedly, the court’s five-member conservative majority — buoyed by the addition of Justices Brett Kavanaugh and Neil Gorsuch since the contraception issue last came before the court — repeatedly questioned whether it was the court’s role to get involved at all.
Justice Clarence Thomas expressed doubt over the appropriateness of nationwide court injunctions, like the type U.S. District Judge Wendy Beetlestone issued in Philadelphia to block the new regulations last year.
“It seems to me that the judicial role is not to put limits on the agency’s discretion that Congress had not put there,” Kavanaugh said.
The case, Pennsylvania v. Trump, is the latest dispute to pit religious liberty against women’s access to equal health care access to arise out of Pennsylvania since the passage of Affordable Care Act in 2010.
The court’s 2014 ruling in the Hobby Lobby case expanded exemptions to the ACA’s contraception mandate to include businesses owned by a small group of owners who object to contraception use on religious grounds.
The Obama administration countered with compromise regulations that required those companies to still provide health care plans with no-cost contraception, but shifted the burden of paying for it from the employers to their insurers.
That prompted another suit out of Pennsylvania in 2015 led by religious nonprofits under the auspices of Roman Catholic diocese of Pittsburgh, who argued the new rules might let them off the hook financially but still required them to tacitly support the use of medicines that violated their beliefs.
But the Supreme Court deadlocked in a 4-4 split and punted that case back to the lower courts without issuing a definitive ruling.
This time, White House lawyers are hopeful for a decision with more resounding impact. They argue that the new rules amount to a reasonable exercise of their rule-making authority to protect religious freedom.
They were joined in their fight Wednesday by the Little Sisters of the Poor, an order of Roman Catholic nuns who have intervened in the case and argue that the current status quo makes them complicit in medical treatments that violate their beliefs. They’ve likened their stance to that of a school rejecting soda machines on campus.
“The school simply doesn’t want to be responsible for providing something it believes is bad for its students,” one of the order’s members, Constance Veit, wrote in a 2016 New York Times op-ed. “It’s the same with us.”
But Pennsylvania and New Jersey say the rule changes could saddle their states with picking up the birth control tab, not to mention the cost of thousands of unplanned pregnancies that could result.
What’s more, the states argue, the Trump administration did not follow a legally required process giving interested parties a chance to comment before implementing the rule change. They are joined by more than 20 other states that have filed supportive briefs with the court.
“We obviously find ourselves in unprecedented times facing unprecedented challenges,” Attorney General Josh Shapiro told reporters in advance of Wednesday’s arguments. “But if anything, this pandemic has made one thing clear: People need more access to health care. Not less.”
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