Free coverage for contraceptives? Supreme Court again considers religious exemptions

WASHINGTON – The Supreme Court is observing social distancing these days, but that won't stop it from prying into the nation's bedrooms. Again.

Federal courts have been doing just that for nearly a decade in an effort to determine whether the federal government can require cost-free insurance coverage for contraceptives. Wednesday, the clash between religious liberty and reproductive rights returns to the high court for the third time.

After passage of the Affordable Care Act in 2010, the Obama administration mandated that most employers provide such coverage, exempting small businesses as well as churches and other houses of worship. Religious charities, hospitals and universities were allowed to have the coverage provided directly by their insurers. In 2014, the Supreme Court ruled 5-4 that privately held corporations with religious objections, such as Hobby Lobby, deserved the same escape route. 

In 2016, a shorthanded court with only eight justices failed to decide whether the religious nonprofit groups could wash their hands completely of the contraceptives coverage, rather than pass it on to their insurers. Instead, the court sent seven cases back to federal appeals courts in search of an elusive compromise.

The dispute is back with several twists: The Trump administration sides with the religious objectors, led by Little Sisters of the Poor, against the position taken by the Obama administration. It has sought to exempt groups with religious or moral objections but has been blocked by federal courts. The Supreme Court, previously deadlocked, now has a solidly conservative majority.

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The justices' willingness to hear a dispute the high court has considered twice before probably bodes well for the Obamacare provision's challengers. In recent years, the court has favored religious liberty: making churches eligible for some public funds, upholding public prayer at government meetings, allowing a mammoth Latin cross to remain on government land and more.

This term, the justices are considering several other challenges brought by religious objectors, including cases concerning public aid for religious education and exemptions from anti-discrimination laws. 

Pandemic forces changes

It's ironic that the case returns to the Supreme Court when an international pandemic has forced the nation into a virtual lockdown and the justices themselves into remote locations, from which they conducted oral arguments by telephone Monday. 

More:Supreme Court hears first case by telephone, with audio livestreamed

“People need more access to health care, not less," says Pennsylvania Attorney General Josh Shapiro, who filed the latest challenge to the Trump administration's contraceptives rule. New Jersey has since joined the case. 

Although his lawsuit resulted in federal court injunctions blocking new exemptions from the contraception coverage mandate, Shapiro recognizes that "the Supreme Court is a different game." The addition of Trump nominees Neil Gorsuch and Brett Kavanaugh since 2017 firmed up the conservative majority, particularly on the First Amendment's religion clauses.

The state will go up against U.S. Solicitor General Noel Francisco and a prolific predecessor, former solicitor general Paul Clement, who has argued 101 cases at the Supreme Court. They contend that Trump's expansion of the "conscience exemption" was proper under two federal laws.

The Justice Department uses the dispute to raise a pet peeve: that district court judges should not have the power to issue nationwide injunctions. Francisco argues that the court "should take this opportunity to resolve the status of nationwide injunctions, reiterating that judicial relief may be no broader than necessary to resolve the injuries of the plaintiffs to a particular case or controversy."

The Trump administration estimated in 2018 that its new rules could result in 70,000 to 126,000 women losing access to contraception. Without insurance, women can expect to pay $600 to $1,000 annually for oral contraception and more for longer-acting methods such as IUDs. 

Before Obamacare, women generally spent at least 30% of their out-of-pocket health costs on contraception, according to the National Women's Law Center. By 2014, the Guttmacher Institute found that nearly two-thirds of women with private insurance paid nothing.

'Not the end of it'

Mark Rienzi, president of the Becket Fund for Religious Liberty, which represents Little Sisters, says the states' claim that tens of thousands of women would be harmed by the exemptions is overblown.

“None of them can find a single actual woman who can say, 'I’ve lost my coverage because of these rules,' " Rienzi says. “They have not been able to show harm to people."

Even if the court sides with the Trump administration, it may not be the end of the battle over birth control. If the president loses reelection, the next administration could reverse government rules, prompting a new round of lawsuits.

Democratic front-runner Joe Biden, if elected, "will restore access to contraception while protecting conscientious objectors from having to provide it," predicts Douglas Laycock, an expert on religion at the University of Virginia School of Law. "At least some conscientious objectors will say that isn't good enough and push the issue back up to the court again."

Brigitte Amiri, deputy director of the American Civil Liberties Union's reproductive freedom project, says, “That is not going to be the end of it, given that this has been in litigation since day one."