June 2020 Church & State Magazine - June 2020

To The Barricades: Americans United Steps Up Its Activism As Another Major Birth Control Case Reaches The Supreme Court

  Liz Hayes

“Surreal” is a word that could describe many of the events surrounding the U.S. Supreme Court oral arguments in Trump v. Pennsylvania – the challenge to the Trump administration’s unconstitutional rules that would allow employers and universities to use religion to deny workers and students birth control coverage guaranteed by the Affordable Care Act.

The arguments themselves were delayed a week after the court reconfigured the remainder of its April sitting due to the coronavirus pandemic. With the court closed to the public to meet social distancing guidelines, the justices agreed to push most of the session’s remaining cases into May, hear the arguments by phone and livestream the audio on C-SPAN so the public could follow along in real time – all unusual moves by a court not known for deviating from its traditions.

Americans United and allies also had to adjust when the arguments finally were heard on May 6. Activists had planned a large rally in front of the court to voice support for reproductive and religious freedom – especially because it was the second Supreme Court case dealing with restricting access to reproductive health care within two months. But gathering in large groups wasn’t safe, so activists took the rally online instead.

It was during the virtual “Rally at Home Together for Birth Control!” on May 5, the afternoon before the court heard the arguments, that AU President and CEO Rachel Laser pointed to another surreal aspect of the case – that it was an issue being litigated at all.

“Does anyone else have a hard time believing that it’s the year 2020 and we still have to worry about something as basic to equality and freedom as birth control?” Laser asked the hundreds of people who participated in the digital rally from across the country. “But we do. In fact, we have to worry about more than that. This case is about two of the most important freedoms we have in America: Reproductive freedom and religious freedom.”

U.S Rep. Jerry Nadler (D-N.Y.) made a similar observation during the rally: “If you had told me as a young activist in the ’70s fighting for reproductive rights in New York that I would be sitting here in 2020 still fighting legal battles over the right of women to access birth control, I would never had believed you. This case is déjà vu all over again.

“Congress was very clear when we passed the Affordable Care Act more than 10 years ago,” Nadler added. “The law was designed to ensure that everyone – men, women, everyone – had access to the health care they needed, and that certainly included birth control.”

The ACA, also known as Obama­care, requires most employers to offer health insurance plans that cover preventive care at no cost to beneficiaries. This preventive care includes coverage of contraceptives, which are critical to people’s health, equality and economic security. Because of this benefit, an estimated 62 million people have been able to access birth control at no additional cost.

The government exempted houses of worship from complying with the ACA’s birth control benefit. And for other religiously affiliated nonprofits with religious objections to contraceptives, the government offered an accommodation: simply sign a written notice of the objection and the government would work with a third-party provider to ensure employees had access to reproductive health care without involving the employer. Through court challenges, this accommodation was later extended to some for-profit, family-owned corporations like the craft store chain Hobby Lobby.

Laser digital rally

AU’s Laser address attendees of online rally for birth control access

But about 70 religious organizations said even signing the opt-out form was a burden and sued the government. In 2016, the Supreme Court failed to resolve these challenges and instead instructed the parties to work out a compromise that would respect religious objections while ensuring that students and workers had access to reproductive health care.

Those cases still were in limbo when President Donald Trump took office in 2017. Spurred by the Christian nationalists who elected him, he soon after issued new birth control rules that create a religious exemption for any employer that wants it, including for-profit corporations. And the rules don’t require employers to tell the government they’re not providing contraceptive coverage – which means the government won’t know who doesn’t have coverage and can’t make arrangements to provide people with access to this critical care.

Several lawsuits challenged the rules, including Irish 4 Reproductive Health v. HHS – a case filed by AU, the National Women’s Law Center and the Center for Reproductive Rights against the Trump administration and the University of Notre Dame. The organizations represent Notre Dame students who lost birth control coverage due to the Trump rules and an illegal backdoor settlement negotiated between Notre Dame and the administration to settle the previous lawsuit.

Another case challenging the Trump birth control rules, Trump v. Pennsylvania, was filed by the states of Pennsylvania and New Jersey. Last summer, the 3rd U.S. Circuit Court of Appeals upheld a preliminary injunction in this case, blocking the rules from going into effect nationwide. But the Trump administration, unwilling to back down from its crusade against reproductive freedom, asked the Supreme Court to take up the case.

Not only was it the third time the high court heard a challenge to the ACA’s birth control benefit, but there was a familiar plaintiff – the Little Sisters of the Poor. Represented by the Religious Right law firm the Becket Fund for Religious Liberty, the Pittsburgh-based order of nuns that runs a chain of nursing homes, intervened and became a party in the lawsuit.

Christian nationalists long have propped up the religious order as the ultimate victims of the birth control benefit, and Trump has often invoked the Little Sisters when he claims to be protecting religious freedom. During the National Day of Prayer in 2017, Trump invited the nuns to his Rose Garden ceremony as he signed an executive order that paved the way for the birth control rules: “With this executive order, we are ending the attacks on your religious liberty, and we are proudly reaffirming America’s leadership role as a nation that protects religious freedom for everyone,” he proclaimed.

But in a May op-ed in the Jewish-audience newspaper The Forward, AU’s Laser and Legal Director Richard B. Katskee explained the hypocrisy of employers in general, and the Little Sisters in particular, claiming to be the injured parties in these legal battles over access to reproductive health care. Laser and Katskee noted that the Little Sisters organization employs hundreds of people who are not nuns, who aren’t Catholic and, for many, who don’t share the order’s religious views on contraception.

Furthermore, Laser and Katskee noted the Little Sisters of the Poor has the type of “church plan” insurance “that allows it to exclude contraceptive care for all those workers — without even having to sign the accommodation form.” In other words, the organization is already exempt from ACA’s birth control benefit and doesn’t need to take advantage of either the accommodation or Trump’s birth control rules.

“They have no harm to claim,” Laser said during an online panel discussion after the oral arguments. The event was hosted by Demand Justice, a progressive nonprofit that advocates for a fair and balanced judiciary. Laser was joined for the debriefing by U.S. Rep. Judy Chu (D-Calif.); Fatima Goss Graves, the president and CEO of the National Women’s Law Center; and Alicia Baker, an ordained minister and reproductive health care advocate who was a plaintiff in a previous lawsuit filed by Americans United and the NWLC.

Laser also noted her concern that some of the justices seemed unwilling to consider the usual balancing test when someone requests a religious accommodation, which includes weighing whether the existing laws are a significant burden on religious beliefs and whether the requested accommodation would harm other people.

“What’s at issue in this case is the fight today over the definition of religious freedom,” Laser said. “This is a very, very big battle that we’re waging. Because the question is, is religious freedom, like it’s promised by the First Amendment, a shield that protects us, or is the government going to be allowed to use religious freedom to cause harm to other people.”

Laser and Americans United are not alone in pointing out how the Trump administration and its Christian nationalist allies are asserting a right to religious privilege: Many faith leaders and religious freedom organizations have spoken out against this misuse of religious freedom.

“As a pastor, I know that my own freedom to believe and practice as I wish does not mean I can force those beliefs on others,” said the Rev. Jes Kast of the United Church of Christ in State College, Pa. “To use religion to deny some that freedom violates our core command to love our neighbors.”

“Religious freedom means actively seeking a way to enable every person to make decisions concerning the most intimate aspects of their lives in accordance with their own religious and moral principles,” said the Rabbi Carl S. Choper of Harrisburg, the president of the Interfaith Alliance of Pennsylvania. “This case represents an attempt to abuse the right to religious freedom to justify forcing one set of religious views on employees and students with less power. As people of faith, we must speak out against these abuses of power.”

“My work as a pastor is grounded in compassion,” wrote the Rev. Dr. Marvin A. Marsh, a retired Baptist pastor, in a May op-ed in The Philadelphia Inquirer. “My faith leads me to defend the freedom of all persons to receive the health care they need regardless of their ability to pay. What my faith does not do is permit me to impose my beliefs on others. My Baptist heritage has long instilled in me the cherished value of religious freedom. But true religious freedom means letting people make their own decisions — about morality, religion, and health care — based on their conscience, free from employer or government interference.”

In a May letter to the editor of The Forward, ADL (the Anti-Defamation League) took issue with the argument that Jews and other religious minorities should broadly support all religious accommodations, including those requested by the Little Sisters of the Poor. ADL, along with more than 20 other interfaith and religious freedom organizations, joined Americans United’s friend-of-the-court brief filed with the Supreme Court in the case.

“The new rules before the Court are essentially a license to discriminate against women,” wrote Joseph Berman, chairman of ADL’s Legal Affairs Committee. “In our day-to-day work, ADL tirelessly works to secure accommodations for Jews and others in schools, the workplace and public accommodations. But our religiously diverse society could not function without some reasonable limits on accommodations. ADL’s position in this case simply mirrors longstanding precedent that the First Amendment’s religion clauses are a shield for faith, not a sword to harm others.”

Laser, in her panel discussion after the arguments, said she is concerned that what is getting lost in this case is the harm the rules will cause to employees and students who will be denied reproductive health care by their bosses and university administrators.

“What stood out to me most about this argument was how little care, notice, attention there was to the harm to women here,” Laser said. “Because … these rules leave 100,000 women – at least – without access to birth control.

“What doesn’t surprise me was that the only two justices who were talking about that problem were women,” she added. “I really appreciated today Ruth Bader Ginsburg there – from her hospital bed! – and Sonia Sotomayor. These two justices are playing a really important role by bring attention to that problem. That’s probably what stood out most to me of the whole argument.”

A decision in this case is expected by the end of this month or early July.    


In addition to Trump v. Pennsylvania, the U.S. Supreme Court heard oral arguments in a pair of religious freedom cases that also were delayed due to the coronavirus pandemic.

Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel were heard jointly on May 11, more than a month after they were originally scheduled. The justices were asked to decide the scope of the “ministerial exception,” which was designed to protect houses of worship from being forced to employ faith leaders who don’t fit their theology. However, private religious schools and other religiously affiliated employers want to broaden the scope of the exception to include teachers and other employees, and to assert a broad right to fire them, even if the reasons don’t relate to theology.

These cases involve two private Catholic schools near Los Angeles that cited the ministerial exception when they fired two teachers whose duties were primarily secular; the women alleged they were fired due to age and disability discrimination.

A final religious freedom case that was scheduled to be heard this spring has been pushed back to fall 2020. Tanzin v. Tanvir involves three Muslim men who cited their religious beliefs when they refused to provide information about other Muslims to the FBI; the men said the FBI retaliated against them by placing them on the no-fly list. They argue this retaliation violates the Religious Freedom Restoration Act (RFRA) by placing unwarranted burdens on their religious practices. The court primarily will be asked to decide whether RFRA allows the men to seek damages against individual government officials.

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

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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