September 2020 Church & State Magazine - September 2020

Contraceptive Clash: Supreme Court Again Fails To Protect Access To Birth Control

  Liz Hayes

The third time was not the charm for the Affordable Care Act’s birth-control benefit at the Supreme Court – the court once again failed to protect reproductive and religious freedom in its latest decision regarding insurance coverage for contraceptives.  

On July 8, the court ruled 7-2 that the Affordable Care Act (ACA) gives the Trump administration broad authority to enact sweeping exemptions to the law – in this case, permitting employers to interfere with the provision of birth-control coverage for workers.  

It was a blow to both reproductive freedom and religious freedom.  

“The Supreme Court put its stamp of approval on the Trump administration’s exploitation of religious freedom at the expense of birth-control coverage for workers, students and their families,” said Americans United President and CEO Rachel Laser. “It’s 2020: We should not have to say again that birth control is essential to people’s health and equality.”  

The case, Trump v. Pennsylvania, was filed by the states of Pennsylvania and New Jersey to challenge the Trump administration’s rules that would allow employers and universities to cite religious or moral objections to deny workers and students access to birth control guaranteed by the ACA. (Because the Pennsylvania-based nursing-home chain run by the Catholic religious order Little Sisters of the Poor intervened in the litigation, the case is also known as Little Sisters of the Poor v. Pennsylvania.)  

Although a loss for Pennsylvania, Americans United and many others who oppose the Trump rules, the Supreme Court’s ruling did not spell the end of the litigation challenging them. The majority of the justices held that when Congress passed the ACA, it gave federal agencies the authority to determine what health care services must be covered and what exemptions to those requirements could be granted. But as Justice Elena Kagan noted in her concurring opinion that was joined by Justice Stephen Breyer, the majority’s decision does not fully resolve whether these specific exemptions are ultimately legal.  

Americans United argues the exemptions are unconstitutional. In an analysis of the decision prepared by AU’s legal and policy experts, AU noted the First Amendment religious-freedom provisions prohibit the government from granting religious exemptions that would harm a third party – a do-no-harm principle that was supported by all nine justices in the Hobby Lobby v. Burwell case, one of the earlier lawsuits involving the ACA’s birth-control benefit.  

“Religious freedom includes the right to believe as you see fit, not to impose your beliefs on or discriminate against others,” Laser said. “The government must not play favorites and allow particular religious beliefs that reject birth control to justify denying countless women and LGBTQ people access.”  

So the litigation will continue. Pennsylvania Attorney General Josh Shapiro has pledged to continue to press in the lower courts the claim that the Trump religious exemptions violate the federal Administrative Procedure Act because they are “arbitrary and capricious.”  

Americans United will also continue to fight in court against the administration’s misuse of religious freedom. Irish 4 Reproductive Health v. HHS was filed by AU, the Center for Reproductive Rights and the National Women’s Law Center on behalf of University of Notre Dame students who lost access to birth control because of both the Trump rules as well as an illegal settlement the administration negotiated with the university to settle a prior lawsuit. AU’s case is the only pending litigation challenging the government’s settlement agreements, which were negotiated with about 70 religious organizations including Notre Dame; these settlements were not involved in the Trump v. Pa. case decided by the Supreme Court.  

In a statement to Notre Dame’s student newspaper, The Observer, the Irish 4 Reproductive Health student group was critical of both the decision and the support the university’s administration voiced for it.  

“Notre Dame’s support of the ruling suggests that the diverse community it vocally celebrates must adhere to its specific set of religious beliefs, thereby diminishing the beliefs of its students, staff, and faculty who may have no qualms over the use of birth control,” the students said.  

Irish 4 Reproductive Health urged the university to support marginalized communities on campus. “To us, that means making all FDA-approved forms of contraception available without copay to students, staff, and faculty as guaranteed under the ACA. Restricting this right forces religious beliefs on people who may not share them and interferes with medical treatment agreed to between a patient and their medical professional.”  

AU’s Laser also voiced concern for the people who will be harmed the most by the Supreme Court’s decision and Trump’s rules: “Our government should be protecting the health of America’s workers and students, not putting them at risk and calling it religious freedom. But the Trump administration’s rules mean that women, LGBTQ people, people of color, low-wage workers and others already facing inequities in health care can be denied birth control access simply because their company or university claims religious or moral objections.”  

As AU noted in its analysis, the court’s decision was based on its findings that the Trump administration had regulatory authority under the ACA to create exemptions to the law. The justices declined to decide whether the rules were allowed or required by the Religious Freedom Restoration Act (RFRA), as the administration claims.  

“As the cases challenging the exemptions continue, the lower courts will be called upon to consider the constitutional do-no-harm principle and the procedural requirement that regulations be based on sound reasoning and not merely ‘arbitrary and capricious’ assertions of governmental power,” AU wrote. “And if a future administration were to rescind the Trump exemption, these issues would certainly resurface then also.”  

In other words, the court punted once again on deciding whether religious freedom can be misused to grant religious exemptions that harm other people. In a concurring opinion, Justices Samuel Alito and Neil Gorsuch made the radical argument that RFRA not only allows such religious exemptions but requires them.  

“Justice Alito’s view of how RFRA should be applied is troubling,” AU’s analysis noted. “If his view were adopted, it could lead to dangerous exemptions from nondiscrimination protections and guarantees of access to health care. Thankfully the court did not subscribe to this misuse of RFRA.”  

Only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented from the court’s ruling, in part because they said the majority ignored the immense burdens and costs the religious exemption would inflict on employees and their families.  

AU’s report spells out some of these harms: “For many, especially students, losing their insurance coverage means facing increased burdens to get birth control, including incurring significant out-of-pocket costs and dealing with major bureaucratic hurdles. Without insurance coverage, the most effective forms of birth control, such as implants and IUDs, can cost as much as a month’s salary on minimum wage. And in the end, students and workers may not be able to afford birth control anymore.”  

As Ginsburg 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.” In other words, the majority sidestepped the constitutional rule and the court’s own jurisprudence that religious exemptions must not harm others.  

The Americans United report noted that the Trump v. Pennsylvania decision combined with two other troubling religious-freedom decisions issued by the Supreme Court this summer (Our Lady of Guadalupe School v. Morrissey-Berru involving workplace discrimination at private religious schools and Espinoza v. Montana Dept. of Revenue involving private school vouchers) signal that “the fundamental principle of the separation of government and religion remains under grave threat – and is more important than ever to preserve.

“Together, these decisions demonstrate how the Supreme Court has been redefining religious freedom, converting what is meant to be a shield that protects us into a sword that harms others,” AU wrote.  

AU’s Laser promised the organization would redouble its efforts – in court, in Congress and in communities – to protect the foundational principle that true religious freedom includes prohibition of governmental interference in favor of one religion over others.  

“Americans United will continue to fight for real religious freedom for all, representing people who are denied their rights by those who use religion to exclude, discriminate and coerce,” she said.  

“We know this won’t be the end of President Trump’s crusade against reproductive freedom [and] religious freedom. His administration will continue to corrupt the principle of religious freedom to justify the denial of health care, employment and government services to millions of vulnerable people. That’s why Congress must act to prevent this administration from implementing policies that harm people and violate America’s core values of freedom and equality.”        



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The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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