In a 7–2 decision on Wednesday, the Supreme Court upheld a Trump administration rule that greatly broadens a religious exemption to the contraception mandate of the Affordable Care Act. Under Little Sisters of the Poor v. Pennsylvania, an employer with a “sincerely held religious or moral objection” to providing this coverage may now decline to cover their employees’ contraception. The government estimated at oral arguments that broadening the religious exemption would result in as many as 125,000 women losing their statutorily mandated contraceptive coverage. This was one of two big wins today for religious employers seeking to end-run laws intended to protect workers.
The case is the latest in an odyssey of litigation around religious dissenters and employer-covered contraception. When the ACA was passed in 2010, employers had to provide cost-free contraceptive coverage as part of preventive health care. But the Obama administration created a narrow carve-out that allowed houses of worship to opt out of the contraception mandate. A follow-on rule gave religious nonprofits an accommodation that allowed them to opt out of providing contraceptive coverage if they “self-certified,” or gave written notice of, their religious objection, at which point their insurer or the government would pay for the coverage. More litigation followed, as even the self-certification requirement was deemed to be triggering abortions. In 2017, the Trump administration broadened the category of religious exemptions to include yet 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, and employers and schools with “moral” but not religious objections to birth control could also claim exemptions. A federal appeals court in Philadelphia enjoined those new rules nationwide. The Department of Justice, and the Catholic nonprofit Little Sisters of the Poor, asked the Supreme Court to reverse those rulings. New Jersey joined Pennsylvania in the suit. That case was heard by the court in May. The lawsuit effectively flipped the theme of litigation in these cases from “Can religious dissenters opt out of the contraception mandate?” to “Can the Trump administration allow anyone to opt out so long as they claim a religious or ‘moral’ objection to contraception?”
In his majority opinion, Justice Clarence Thomas determined that the Trump administration “had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections.” Pennsylvania had also argued that the administration rolled out the rule without sufficient process, but Thomas rejected that idea, dissolving the nationwide injunction and remanding the case back to the lower courts. “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.”
Thomas was joined by Chief Justice John Roberts and Associate Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Alito (joined by Gorsuch) wrote that he would have gone much further, arguing that the prior administration’s refusal to broaden the accommodation to sincere religious objectors violated the Religious Freedom Restoration Act. Justices Elena Kagan and Stephen Breyer joined in the narrow decision to send the case back to the lower courts for review, on the theory that, yes, the government has the authority to promulgate exemptions. But they seemed uncertain the new exemptions would survive lower court scrutiny. As Kagan wrote, the administration may not have used “reasoned decisionmaking,” and lower courts should attempt to resolve the issue in the next round. Then she drew a reasoned decision-making map for future litigation: “The agency does so when it has not given ‘a satisfactory explanation for its action’—when it has failed to draw a ‘rational connection’ between the problem it has identified and the solution it has chosen, or when its thought process reveals ‘a clear error of judgment.’ ”
Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented, with Ginsburg writing, as she did in Hobby Lobby, to point out that in what should be a careful accommodating of two competing interests (religion and health), the balance was again being skewed dramatically away from women’s health. “Accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs,” she wrote. “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”
Ginsburg pointed out the government has estimated between 70,500 and 126,400 women would lose their “no-cost contraceptive services” if more employers were exempt from providing it. Echoing her own fears expressed at oral arguments that the court seems to have written women’s health and equality interests out of the equation altogether, she wrote, “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.”
It bears mentioning that this decision comes down in the midst of a pandemic alongside crippling national job losses and financial hardship. Women, already bearing the brunt of shutdowns and child care, may now lose access to vital contraception coverage. Poor women and women of color will be hardest hit, yet again. As Ginsburg writes, “More than 2.9 million Americans—including approximately 580,000 women of childbearing age—receive insurance through organizations newly eligible for this blanket exemption. Of cardinal significance, the exemption contains no alternative mechanism to ensure affected women’s continued access to contraceptive coverage.” Without insurance, women can expect to pay $600 to $1,000 annually for oral contraception and more for IUDs.
As the dissent notes, the animating idea behind religious accommodations is that the government may surely accommodate religion but it may not benefit religious adherents at the expense of the rights of “third parties.” The third parties here are the women who have simply fallen out of the majority’s calculations. Last week I worried about how even the decision in June Medical, ostensibly a pro-woman ruling, seemed to have erased women’s reproductive challenges from the holding in the case. The same seems to be true of the women who do not share the religious views of their schools or employers, whose interests have been sidelined in this ostensible balancing test. Whenever we talk about women’s reproductive freedom in America being stripped away by a thousand tiny cuts, we aren’t just referencing whether clinics in Louisiana may survive until the next regulation is enacted. We are talking about a web of decisions that demote women to bystanders. With these religious objector cases, we are witnessing the blurring of women’s constitutional and statutory rights into the background as the interests of everyone else, including their religious bosses, are positioned as singular and urgent. As religious dissenters continue to swallow the protections, rights, and entitlements afforded to women under the law, the trend lines are clear. It’s useful to recall that what the court taketh away cannot be fixed in the next legislative session or the one that follows. Yes, the next administration could change the opt-out rules again. But the court is overseeing a seismic and lasting shift away from factoring women’s health into the picture.