The Supreme Court is scheduled to hear arguments Wednesday on whether two Trump administration rules that would expand the types of employers that could refuse to cover contraception can take effect.
The rules would let any employer, or university offering students coverage, seek a religious or moral exemption to covering birth control under their health plans. Under the 2010 health care law, most women have access to contraception without a copay. That requirement has been in effect since 2012.
Last year, the two rules from the departments of Health and Human Services, Treasury, and Labor were set to permit the exemptions before being blocked in the courts. The case is being closely watched in part because the high court is more conservative than in the past.
Opponents of the rules say they could have decreased access to contraceptives for hundreds of thousands of women. But supporters of the rules say they are needed to protect against religious discrimination for employers whose beliefs conflict with contraception.
Multiple district courts issued nationwide injunctions against the rules. And in a case brought by Pennsylvania and New Jersey, the U.S. Court of Appeals for the 3rd Circuit continued to block the rules.
That decision was appealed and two consolidated cases — Trump v. Pennsylvania and Little Sisters of the Poor v. Pennsylvania — aim to have those rules implemented by appealing that decision.
Series of arguments
This is the third time that arguments over the contraceptive mandate have reached the Supreme Court.
In 2014, the high court decided in Burwell v. Hobby Lobby Store that closely held for-profit corporations with religious objections could be exempted from the coverage mandate.
But in 2016, the Supreme Court remanded Zubik v. Burwell, sending seven consolidated cases back to their respective districts without resolving the issue of whether religious institutions other than churches should be exempt from the mandate. Religious groups have wanted more clarity from the government since then.
The Supreme Court will have the opportunity to once more weigh in and decide if additional exemptions to the law are constitutional. This will be the first case challenging this part of the law since the addition of two Trump nominees to the Supreme Court — Neil Gorsuch and Brett Kavanaugh — tilting the court to a conservative majority.
Brigitte Amiri, deputy director with the American Civil Liberties Union Reproductive Freedom Project, said the new rules go much further than the previous accommodations.
Essentially, she said the law — under the Obama administration's interpretation — requires an insurance company to provide coverage and communicate with the employees about the benefit, allowing employers to refuse to be directly involved in administering the coverage. The employers, closely held for-profits and religiously affiliated nonprofits, have to fill out a one-page form to step back from direct involvement.
“Under the accommodation, employees still get the benefit. But under the exemption, they will not,” she said during a call with reporters last week.
“There’s a fundamental difference between the Trump rules and the accommodation that was afforded organizations and closely held for-profit organizations under the Obama administration,” she added. “It’s a total exemption that the employer can invoke under the Trump rules."
The Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor, argues the rules are necessary to further protect religious liberty.
“This extraordinary — and extraordinarily unseemly — effort by two states to block the federal government from providing a religious exemption to a federal mandate should have been the last context in which to grant nationwide relief. Not only are the sovereign interests of Pennsylvania and New Jersey distinctly limited to their boundaries; the federal government sought to relax burdens on the governed and to promote religious liberty,” the law firm wrote in a brief in late April.
Seventeen states and the District of Columbia have challenged the Trump rules, with the two big lawsuits spearheaded by Pennsylvania and California.
“The Supreme Court already told the government to accommodate the nuns' conscience rights and the president issued an executive order ensuring that employers cannot be forced to violate their religious beliefs,” said Ashley McGuire, senior fellow with The Catholic Association, in a statement. “Nevertheless, attorneys general like Xavier Becerra and Josh Shapiro just won't stop harassing these women and keeping them from their life-saving work on behalf of our nation's most vulnerable.”
Shapiro, the Pennsylvania attorney general, said the rules overstepped the mark.
“They clearly overreached. They violated the rule of law,” said Shapiro. “This case isn’t about forcing a church to provide access to birth control. Look, they’re already exempt, and we’re not challenging those exemptions.”
Oral arguments are Wednesday at 10 a.m.