alt=Kelsey DallasSALT LAKE CITY — The Supreme Court on Wednesday heard oral arguments in its latest Affordable Care Act case, considering once again what the government owes to employers who object to offering birth control coverage in health plans due to their faith.
The case, Little Sisters of the Poor v. Pennsylvania, arose after the Trump administration expanded exemptions to the health law’s contraceptive mandate in 2017, enabling nearly any business with religious or moral concerns to sidestep coverage requirements without facing financial penalties.
Justices have been asked to decide whether federal law, including religious freedom protections, authorized such a broad policy change. The government was joined by a religiously affiliated nonprofit, the Little Sisters of the Poor, to defend the exemptions.
Throughout the nearly 100 minutes of oral arguments, the Supreme Court appeared split on whether the Trump administration’s actions upheld religious freedom law or undermined it. Justices don’t agree on whether it’s lawful to help a person of faith if taking such a step requires harming another party.
The justices likely won’t resolve that debate in this case, but they will add to our understanding of how to balance the concerns of religious objectors to birth control with the needs of female employees seeking contraceptive coverage, legal experts said.
Religious freedom and birth control
The Supreme Court previously considered who can access exemptions and accommodations to the contraceptive mandate, as well as the structure of accommodations, in cases involving closely held for-profit businesses, religiously affiliated schools and faith-based nonprofits.
The justices referenced these earlier cases during Wednesday’s oral arguments and sometimes appeared frustrated to be treading the same legal territory yet again.
“Why isn’t that sort of accommodation sufficient? I didn’t understand the problem (in 2016) and I’m not sure I understand it now,” Chief Justice John Roberts said at one point, referencing the possibility of the government working directly with a religious employer’s insurance plan to coordinate contraceptive coverage for employees.
Paul Clement, who was arguing on behalf of the Little Sisters of the Poor, said it would likely be possible to craft an acceptable accommodation, but that the Obama administration seemed unwilling to do so. When the Trump administration took office and moved forward with its exemption plan, accommodations-related negotiations became unnecessary.
Roberts and other justices questioned the Trump administration’s approach at several points during proceedings, wondering what justified such a broad moral and religious exemption to the contraceptive mandate. It would have been possible to address the concerns of employers like the Little Sisters of the Poor in a more limited way, said Justice Elena Kagan.
“There was an existing accommodation in place and some employers had objections to that accommodation. ... Even assuming those objections needed to be taken into account, the rule sweeps far more broadly than that,” she said.
Noel Francisco, who serves as U.S. solicitor general, said the government has the authority to address religious freedom concerns however it sees fit. Just because a more narrow exemption or an updated accommodation process could have been worked out doesn’t make the Trump administration’s exemptions illegal, he said.
“Once there’s a substantial burden (on faith), the government has the flexibility to lift it in different ways,” he said.
However, in relieving a burden on a religious group, the government must not lose site of other parties affected by the decision, said Justice Ruth Bader Ginsburg, who is currently hospitalized with an infection but still called into the discussion. Religious freedom law doesn’t authorize harm to those other parties, she argued.
“The major trend is not to give everything to one side and nothing to the other side,” Ginsburg said, noting that the Supreme Court prioritized balance in its previous rulings on birth control coverage.
The problem with the Trump administration’s moral and religious exemptions is that they disregard the needs of thousands of female employees, she added.
“You have tossed entirely to the wind what Congress thought was essential: that women be provided these services with no hassle and no cost to them,” Ginsburg said.
Both Francisco and Clement pushed back against this claim, explaining that the Affordable Care Act did not mandate birth control coverage from all employers. From the beginning, several large employers received exemptions and health officials offered exemptions to houses of worship starting in 2011.
If you concluded the agencies didn’t have the authority to issue new moral and religious exemptions, it would undermine existing exemptions and accommodations, Francisco said.
He added that companies covered by the new exemptions aren’t required to take advantage of them. Several will continue to provide birth control coverage to their employees.
“There’s no reason why an employer who doesn’t object to providing contraception ... would invoke the exemption,” Francisco said.
Seeking resolution
In addition to discussing federal religious freedom law and whether it justifies the Trump administration’s actions, the Supreme Court considered whether the Affordable Care Act gives health officials the authority to craft new exemptions and, if so, whether they followed the correct procedure.
Michael Fischer, who serves as Pennsylvania’s chief deputy attorney general, argued that health officials did not have the right to enact such sweeping changes. If the justices disagree, they should still rule against the Trump administration since it issued its new rules without first soliciting comments and questions from affected parties, he said.
In his questions for Fischer, Roberts compared the government’s goal of guaranteeing no-cost birth control coverage to a list of chores a parent might leave with a babysitter and expect their children to complete.
The parents would likely leave it up to the babysitter to split the chores between kids, he said. In the same way, it’s fair to assume that Congress was fine with leaving it up to health officials to determine which employers must cover contraception.
“There’s not an assumption that every child has to do each chore,” Roberts said.
Fischer and then later Justice Sonia Sotomayor took issue with this conclusion, arguing that under the current exemptions, no chores are getting done. The government is requiring neither employers with religious or moral objections to birth control nor their insurers to provide free contraceptive coverage to employees.
Employers “can tell insurers not to provide contraception and then no entity has the obligation to provide it at that point,” Fischer said.
Even if religious freedom law gives the Trump administration broad authority to create religious exemptions, that doesn’t justify granting the same exemption to employers with only moral concerns, he added.
“We think the moral rule is so untethered from any reasonable standard that it’s certainly arbitrary and capricious,” Fischer said.
The justices aren’t required to treat religious and moral exemptions the same way in their ruling, said Elizabeth Sepper, a law professor at the University of Texas, to the Deseret News last week. They could uphold one type of exemption and overturn the other.
There’s also no rule that the Supreme Court must base its decision on religious freedom law, since the case involves so many other concerns. The justices might focus their ruling on the original text of the Affordable Care Act, the process by which the Trump administration issued its new exemptions, previous cases involving the contraceptive mandate or all of the above, Sepper said.
“This case could be resolved in dozens of different ways,” she said.
Regardless of the court’s eventual decision, which is expected sometime this summer, Sepper and other legal experts don’t expect battles over the contraceptive mandate to end anytime soon.
If the Trump administration’s rules are overturned, then health officials could reissue them in a more narrow form. If they’re allowed to stand, a future administration could undo or, at the very least, adjust them.
The justices on Wednesday seemed to be grasping for a less contentious path forward. It would be helpful for people on both sides of the debate to seek compromise instead of continuing to dig in their heels, Roberts said.
“The problem is that neither side in this debate wants the accommodation to work,” he said.