Just as much of the country hides behind masks and closed doors, the Supreme Court has suddenly made the decision to be seen. For the first week in history, the justices are allowing their proceedings to be broadcast, live on C-SPAN, and we all have the opportunity to hear their voices for the last 10 oral arguments of the 2019 term. Even Justice Ruth Bader Ginsburg, phoning in from a hospital bed where she is recovering from gallbladder complications, was audible to millions of people possibly for the first time as she expressed, in real time, the questions that worry her about the case.
And just as the justices are choosing to be visible as the rest of the world slides away, the arguments on Wednesday in Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania are a pretty good indicator of which Americans are visible to the justices and which are simply not. The cases—consolidated for argument—are a follow-on to Obama-era challenges by religious objectors to the contraception mandate in the Affordable Care Act, and if they feel a bit echoey to you, that’s because the consolidated cases raise many of the same issues the court addressed in Zubik v. Burwell, which fizzled out in the spring of 2016 after Justice Antonin Scalia died as the case was pending.
The Little Sisters of the Poor, a Roman Catholic charitable religious order that is doing particularly heroic work to save the elderly, the dying, and the poor during the current COVID-19 crisis, already have a religious accommodation. They have a church plan the government doesn’t claim to regulate. They were granted permission to intervene in this case, but the actual dispute here is over new rules promulgated by the Trump administration to broaden the kinds of employers permitted to opt out of the contraception mandate, for reasons religious or “moral,” and the states (led by Pennsylvania) that do not want to bear the increased cost of the exemptions. But some of the justices still manage to see only religious objectors’ suffering, and they are also telling us a lot about whom, and also what, they do not see.
Under the ACA, employers had to provide cost-free contraceptive coverage as part of preventive health care. Churches were always exempted from the mandate, while religious charities, hospitals, and schools were allowed to ask their insurers to provide the coverage directly. You’ll recall that in 2014, after Hobby Lobby and other for-profit employers refused to cover contraception for their workers, the Supreme Court determined for the first time that the federal Religious Freedom Restoration Act permitted them to opt out, even if it hurt nonreligious third parties (the people who work for them). Instead of forcing these employers to provide birth control outright, the court said they could readily be given the same accommodation the Obama administration had granted religious objectors: They could simply shift the costs to insurers so long as the employer “self-certified” that it objects to covering contraception. At that point, the religious dissenters no longer wanted that accommodation or to be any part of a causal chain that ended in birth control for workers, regardless of who paid, and demanded that workers be forced to find some other source. That was Zubik, which was decided by not deciding (the case was sent back to the lower courts).
In 2017, the Trump administration broadened the category of religious exemptions to include more employers who wanted to be free from the obligation to cover their workers’ contraception. Any nonprofit or for-profit employer, including publicly traded companies, could now be exempted on religious grounds. Further, nonprofits and companies that are not publicly traded who have “moral” if not religious objections to birth control can also claim exemptions. A federal appeals court in Philadelphia enjoined the new rules nationwide. There is a big element of this case that questions whether the Department of Health and Human Services followed its own administrative procedures to make that new rule, bypassing the ordinary notice and consent requirements, but the bigger issues the court is considering are whether religious dissenters require even more of an accommodation than the self-certification accommodation that came out of Hobby Lobby, and whether the Trump administration can expand that accommodation for anyone with, you know, “moral” objections to birth control.
The long-standing tradition, in cases of religious objectors who wish to opt out of government obligations that violate their faith, is one of careful accommodation, with the state attempting to balance the religious burdens on the adherents against the interests of the state and the hardship that befalls third parties. In a moment of vanishingly rare bipartisan consensus, the majority of the justices acknowledged at argument that there’s no reason for this question to be in its fourth year of litigation: “Is it really the case that there is no way to resolve those differences?” asked Chief Justice John Roberts. He added, when questioning Paul Clement, who represents the Little Sisters, “The problem is that neither side in this debate wants the accommodation to work.” Ginsburg noted that these cases are meant to be resolved through “tolerance, accommodation, and respect for workers and students.” And Justice Stephen Beyer added, “I don’t understand why this can’t be worked out.”
Justice Samuel Alito, who wrote the Hobby Lobby opinion without ever determining whether there is a compelling state interest in contraception, and without much mention of “women” at all, took the strongest position in favor of the Little Sisters. He also noted that the longest and best government tradition was for accommodation before concluding that there is nothing the nuns can possibly do to bring them into compliance, even as they are not being asked to comply, and so they must, for some reason, prevail. For her part, Ginsburg could see the clashing interests, but what was most visible and painful to her are the women who will be forced to track down and pay out of pocket for contraceptive care they were guaranteed under the ACA. In three separate rounds of questions, she noted that the Trump administration had “tossed entirely to the wind what Congress considered to be essential, that women be provided this service, with no hassle and no cost to them.” She was mystified that the government was leaving women in precisely the position the ACA had tried to avoid: “to hunt for other government programs that might cover them. And for those who are not covered by Medicaid or one of the other government programs, they can get contraceptive coverage only from paying out of their own pocket, which is exactly what Congress didn’t want to happen.” Oddly, the only textualist left in the room was the woman asking why the ACA used the words comprehensive coverage when it seemingly really meant “meh.”
In response to Ginsburg’s questions about how many women would be left in this situation, Solicitor General Noel Francisco shrugged that perhaps between 75,000 to 125,000 women would in fact lose employer coverage for contraception. Those women, then, are so insignificant as to be invisible to the Trump administration. They are truly the ghost-women of the American workforce.
The true invisibility of these real harms to real women was surfaced when Justice Sonia Sotomayor pressed Paul Clement on what would happen if the government were to similarly exempt religious dissenters from covering a COVID-19 vaccine. Could religiously dissenting companies or charities opt out of paying for an employee’s hypothetical coronavirus vaccine? Surely such religious objectors exist? Clement responded that “in the context of COVID-19, I think the government might be able to meet its burden” of requiring that the vaccine be provided regardless. It seems that might rise to a compelling interest for the government, which, it seems, birth control can never be.
As is often the case of late, it was Roberts who seemed to lament that the 2017 exemptions might “sweep too broadly,” leaving space for some of the new rules to be cut back. At minimum there may be agreement that the way the court promulgated the rules was sloppy. Astoundingly, the other court conservatives who routinely push for the kneecapping of agency powers and the “nondelegation” constraint on all federal agencies, appear to be cool with the argument that since Trump’s HHS has the authority to create religious exemptions, it also has the authority to do whatever it feels like whenever it wants for any reason. But, as we see with increasing clarity, in a world in which every injury is shaped like a deliberate anti-religious affront, everything else—and everyone else—is always just shadows and noise.