This article is part of the Debatable newsletter. You can sign up here to receive it on Tuesdays and Thursdays.
In 2012, the Obama administration issued a regulation requiring most employer-sponsored insurance plans to cover the costs of birth control. In less than just two years, the proportion of privately insured women who paid no out-of-pocket cost for birth control pills soared, to 67 percent from 15 percent.
Now, that number is likely to head back down. On Wednesday, the Supreme Court upheld a Trump administration rule that allows any employer with religious or moral objections to opt out of the Affordable Care Act’s mandate, soon costing as many as 126,400 women their contraceptive coverage, according to government estimates.
Why did the court, including two of its more liberal justices, rule this way, and what does it mean for the freedom of religion and for the future of birth control access? Here’s what people are saying.
A legal odyssey
Wednesday’s decision was part of a legal battle that has been going on for the better part of a decade, as The Times editorial board explains. It began when the Obama administration carved out a narrow exemption from the birth control mandate for houses of worship, but not for nonprofits affiliated with religious organizations, like schools and hospitals.
If such organizations wanted an exemption, they could apply for one, and either their health insurer or the government would pick up the bill for their employees’ birth control.
In 2014, the Supreme Court extended that right to certain for-profit corporations as well, after the company Hobby Lobby, whose evangelical owners believe some forms of birth control are tantamount to abortion, claimed that the mandate violated its religious liberties under the Religious Freedom Restoration Act, a 1993 federal law.
Wednesday’s case concerned the Little Sisters of the Poor, an order of Catholic nuns, who maintain that even applying for an exemption would make them complicit in moral transgressions that violate their religious beliefs. The organization gained a powerful ally in the Trump administration, which issued new rules that allow any company that isn’t publicly traded to opt out of the contraception mandate entirely.
It is those rules that the court upheld this week. Under them, the Harvard Law professor Noah Feldman writes in Bloomberg, employers who cite a “sincerely held religious or moral objection” would be treated like houses of worship, effectively absolving their health insurance providers of any responsibility to pay for their employees’ contraceptive care.
How the court decided
The court’s ruling was decided on relatively narrow grounds. In his opinion, Justice Clarence Thomas avoided making a value judgment about the Trump administration’s rules and their potential harm, concentrating instead on whether the administration had the authority to make them. The Affordable Care Act, he wrote, grants the Department of Health and Human Services “virtually unbridled discretion to decide what counts as preventive care and screenings,” and similarly broad discretion to “identify and create exemptions from its own guidelines.”
If the lawmakers who passed the Affordable Care Act wanted to ensure coverage of contraception, they could have explicitly enshrined it as a kind of preventive care in the legislation, but they didn’t. “It is Congress” — not the Trump administration — “that has failed to provide the protection for contraceptive coverage,” Justice Thomas wrote.
The ruling’s technical nature enabled two of the court’s more liberal justices to join, but it also means that conservatives did not get everything they wanted. As the editors of National Review observe, the court did not decide whether the exemptions from the mandate ought to be required rather than simply allowed, which means the issue will continue to be litigated.
“A better outcome would have been to apply the R.F.R.A., considering whether the mandate serves a compelling government interest, whether it imposes a substantial burden on religious employers, and whether it accomplishes its goals by the least restrictive means possible,” they write. “Though today’s decision was a small victory, it will take a more sweeping decision to offer some finality to debates over the mandate.”
In her dissent, Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, disagreed with Justice Thomas’s procedural argument. While the administration does have broad authority to determine what preventive services insurers must provide women, she wrote, it does not have the authority to determine whether they get covered, nor by whom.
But by and large, criticism of the decision to uphold the Trump rules has focused less on whether they are legal than on whether they are moral. As Justice Ginsburg herself 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.”
To be exact, the National Women’s Law Center calculated that 61.4 million women enjoy access to birth control at no out-of-pocket cost because of the Affordable Care Act, whose coverage this ruling may now jeopardize.
The center was also among many of the decision’s critics to point out that birth control is not exclusively a matter of contraception:
And when viewed at a distance, the decision seems part of larger web of decisions that demote women to bystanders, Dahlia Lithwick writes in Slate. “With these religious objector cases,” she says, “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.”
A second strike against employer-sponsored health insurance?
For supporters of public health insurance, this ruling provides only more proof that America’s insurance system is terribly flawed. Before March, about half of all Americans received health insurance from an employer, as Jeneen Interlandi noted in The Times last month. But then the coronavirus plunged the economy into a recession that cost tens of millions of people their jobs.
That some workers will continue to receive birth control coverage from their employers will not make that coverage any less contingent on their employment. Representative Ro Khanna, a Democrat from California, tweeted:
The conservative justice Samuel Alito even pointed to the gaps in the American insurance system to counter Justice Ginsburg’s dissent. For instance, he wrote in a concurring opinion, the Affordable Care Act does not require plans to cover dental care; millions of employees must secure separate dental insurance or pay dentist bills out of pocket. Why should the court assume Congress views birth control as a more compelling need? And more broadly, he asked, “If Congress thought that there was a compelling need to make free contraceptives available for all women, why did it make no provision for women who do not receive a paycheck?”
In any case, he wrote, if Congress does believe that there is a compelling need for universal and free birth control, there are other means of meeting it that would be less burdensome to religious people: Namely, the government could pay for birth control itself.
What’s coming next
The battle over the exemptions from the birth control mandate probably isn’t over yet, Amy Howe writes at SCOTUSblog. Instead, the dispute will go back to the lower courts, virtually guaranteeing that the litigation will continue until well after the 2020 election. And depending on the election’s results, the exemptions could be narrowed or eliminated. “But at the very least,” she says, “today’s decision cleared the way for employers to claim the exemptions going forward.”
In Vox, Ian Millhiser predicts that the consequences of this decision will extend beyond birth control. That’s because the same section of the Affordable Care Act that requires insurers to cover the costs of women’s “preventive care and screenings” also requires they cover the costs of “preventive care and screenings” for minors and, also crucially, immunizations recommended by the Centers for Disease Control and Prevention.
“All of these provisions of the Affordable Care Act are potentially threatened by Thomas’s opinion in Little Sisters,” Mr. Millhiser writes.
Do you have a point of view we missed? Email us at email@example.com. Please note your name, age and location in your response, which may be included in the next newsletter.
MORE ON THE RULING
“The Supreme Court just helped the Trump administration limit access to contraception” [The Washington Post]
The Times contributor Dr. Jennifer Gunter: “Reducing contraception access is literally pro-death.” [Twitter]
“Religious Liberty Lives at the Supreme Court” [The Wall Street Journal]
WHAT YOU’RE SAYING
Here’s what readers had to say about the last edition: Is the Coronavirus Killing the World Health Organization?
Dr. Michel Lavollay, from Belgium: “In actual fact the W.H.O. has done a good job on Covid-19, and the G20 and G7 (minus the U.S.) are handling the response quite well, with the European Commission playing a central role. Managing the China relationship cannot be done through public insults, and Covid-19 should not be used to solve the Taiwan and Hong Kong issues.”
Dr. Agostino Borra, a former W.H.O. staff member: “The W.H.O. is traditionally a technical agency, but doesn’t have much power in leading/facilitating discussions of international political nature like those that should take place to strengthen the response to the pandemic. That’s why the mechanism designed and already existing to help in very problematic security situation is, or should be, the involvement of the U.N. Security Council.”