The Affordable Care Act’s birth-control mandate requires most employers to provide their female employees with health insurance that includes access to certain forms of contraceptives. In 2017, the Trump administration issued new rules that expanded an exemption from the mandate to allow private employers with religious or moral objections to opt out of providing coverage without any notice. Today, by a vote of 7-2, the Supreme Court rejected a challenge from two states that had argued that the new rules violate both the ACA itself and the federal laws governing administrative agencies. The ruling was an important victory for the Trump administration, but the battle over the exemptions and the mandate is likely not over yet.
The dispute at the center of today’s decision is the third one involving the birth-control mandate to come to the Supreme Court. The mandate is not expressly created by the ACA, which instructs health plans to provide coverage for “additional preventive care and screenings” for women. Carrying out this charge, the Health Resources and Services Administration, a division of the Department of Health and Human Services, issued guidelines that require health plans to provide access to FDA-approved birth control at no cost to the women covered by the plans.
The federal government excused churches and other houses of worship from having to comply with the mandate; it also created an “opt-out” process for religious nonprofits that objected to having to comply. In 2014, in Burwell v. Hobby Lobby, the justices ruled that a corporation owned by a devoutly religious family that objected to having to provide female employees with access to contraceptives could also opt out of the mandate.
Two years later, the birth-control mandate was back at the court. This time the challengers were religious nonprofits, who argued that even the opt-out process created by the Obama administration, which required them to notify HHS of their objection to the mandate, placed a substantial burden on their exercise of their religion. But the Supreme Court – with only eight members after the death of Justice Antonin Scalia – didn’t resolve the dispute. Instead, it sent the case back to the lower courts with instructions for the two sides to find a way that would respect the nonprofits’ religious beliefs but still allow the female employees to receive full contraceptive coverage.
Today’s ruling came in a dispute that arose after the Trump administration issued new rules that extended the exemption from the birth-control mandate to cover private employers that have religious or moral objections to providing their female employees with access to contraceptives. Two states, Pennsylvania and New Jersey, went to federal court to challenge the expansion, arguing that the new rules violate both the Affordable Care Act and the federal laws governing administrative agencies. A federal district court agreed and blocked the government from enforcing the rules anywhere in the United States, and a federal appeals court upheld that ruling. The Trump administration and the Little Sisters of the Poor, a Catholic religious group that works with the elderly, asked the Supreme Court to weigh in, and the justices heard oral argument by telephone in May.
Justice Clarence Thomas wrote for the court, in an opinion that began by rejecting the states’ argument that the exemptions violate the ACA because that law only authorizes HRSA to identify what preventive care health plans must provide, not to create exemptions from that care. The ACA, Thomas observed, gives HRSA “virtually unbridled discretion to decide what counts as preventive care and screenings.” That discretion, Thomas continued, is “equally unchecked in other areas, including the ability to identify and create exemptions from its own Guidelines.”
Thomas pushed back against the suggestion, made by Justice Ruth Bader Ginsburg in her dissent, that the majority’s conclusion will make it harder for women to obtain free access to birth control, as Congress intended. Congress, Thomas stressed, could have enacted specific language in the ACA requiring health plans to cover birth control, but it didn’t; instead, it gave HRSA broad authority “without any qualifications.” Therefore, Thomas posited, Congress, rather than HHS and the other executive branch departments, should bear the blame for any lack of coverage for women.
Because the rules creating the exemptions were consistent with the ACA, Thomas explained, the court did not need to weigh in on the government’s argument that the exemptions were either required or authorized by the Religious Freedom Restoration Act, a 1993 law that bars other federal laws from placing a substantial burden on an individual’s free exercise of her religion. Having said that, Thomas continued, it was appropriate for the departments to consider RFRA because “the potential for conflict between the contraceptive mandate and RFRA is well settled.” Indeed, Thomas noted, the Supreme Court’s earlier decisions involving the mandate “all but instructed the Departments to consider RFRA going forward.” “It is hard to see,” Thomas posited, “how the Departments could promulgate rules consistent with these decisions if they did not overtly consider these entities’ rights under RFRA.”
Thomas next dismissed the states’ arguments that the exemptions were invalid because the government did not follow the proper procedures when it enacted the rules finalizing the exemptions in 2018. Among other things, the states had contended that there was no indication that the departments had “maintained an open mind” because the final rules closely resembled the earlier version of the rules – suggesting that the departments had not taken any comments on the interim rules seriously. All that matters, Thomas made clear, is whether the departments followed the criteria outlined in the Administrative Procedure Act, which outlines the process that an agency must follow when issuing new rules, and they did.
Thomas concluded the court’s opinion by lauding the work of the Little Sisters. “But for the past seven years,” he wrote, “they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision—have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs. After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate.” The court today, Thomas explained, held that the government “had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption,” and that the “rules promulgating these exemptions are free from procedural defects.”
Justice Samuel Alito filed a concurring opinion that was joined by Justice Neil Gorsuch. Alito would have gone further than the Thomas opinion and ruled “not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption (or something very close to it).” He would, he wrote, “bring the Little Sisters’ legal odyssey to an end.”
Justice Elena Kagan filed an opinion, joined by Justice Stephen Breyer, in which she agreed with the result that the majority reached, but not with its reasoning. Since the Obama administration, she observed, the federal government has interpreted the ACA to give HRSA the power to create exemptions from the birth-control mandate; she would “defer to that longstanding and reasonable interpretation.” However, she noted that when the cases return to the lower courts, those courts will have to address an issue that neither they nor the Supreme Court have previously reached: Whether the exemptions are “arbitrary and capricious” – that is, the product of reasoned decision-making. And, she suggested, “the exemptions HRSA and the Departments issued give every appearance of coming up short” because they are too broad. For example, Kagan suggested, “even publicly traded corporations” can “claim a religious exemption,” as can employers “with only moral scruples.”
Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Justice Sonia Sotomayor, that was sharply critical of the majority’s ruling. “Today,” she wrote, “for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” Today’s decision, she added, “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.” Neither the Constitution nor RFRA, she complained, calls for such a conclusion – as a result of which, Ginsburg wrote, “between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services.”
As both Alito’s and Kagan’s opinions suggest, the battle over the exemptions from the birth-control mandate may not be over yet. Instead, the dispute will go back to the lower courts for them to weigh in on whether the expansion of the exemptions was the product of reasoned decision-making, virtually guaranteeing that the litigation surrounding the exemptions will continue until well after the 2020 election. And depending on the results of the election in November, a change in administration could lead to efforts to narrow or eliminate the exemptions. But at the very least, today’s decision cleared the way for employers to claim the exemptions going forward.
This post is also published on SCOTUSblog.