Supreme Court Takes Up Case of Employers Denying Birth Control Coverage

January 21, 2020

The Supreme Court announced on January 17 it will hear a case regarding employers’ ability to limit access to free birth control under the Affordable Care Act. This marks the third instance the Court has looked at a case regarding applicability of the contraception mandate, but the first time with conservative Justices Neil Gorsuch and Brett Kavanaugh both on the bench.

The Supreme Court announced on January 17 it will hear a case regarding employers’ ability to limit access to free birth control under the Affordable Care Act (ACA). This marks the third instance the Court has looked at a case regarding applicability of the contraception mandate, but the first time with conservative Justices Neil Gorsuch and Brett Kavanaugh both on the bench, Kaiser Health News reports.

According to Politico, Justices Gorsuch and Kavanaugh considered cases similar to this while appellate court judges and “both showed sympathy for religious groups seeking exemptions from the requirement on moral grounds.”

During the Obama administration, 2 cases were brought to court regarding claims made by religious groups who refused to comply with regulations requiring contraceptive coverage. Now the question put forth is whether any employers with religious or moral objections to contraception can opt out of the coverage requirement under the current administration, according to the New York Times.

The ACA, signed into law in 2010, requires coverage of preventive health services for women. In 2011, the Obama administration required both employers and insurers to completely cover all costs incurred by women for FDA-approved methods of contraception. This revision excluded houses of worship, such as churches, temples, and mosques, but included any nonprofit group affiliated with religious organizations like schools and hospitals, the New York Times reported.

Ensuring employers’ discretion to withhold contraceptive care coverage on moral or religious grounds was one of President Trump’s key campaign talking points. This most recent case comes after the attorneys general of Pennsylvania and New Jersey challenged the Trump administration’s 2017 expansion of exemptions to the coverage mandate.

The two states argued the administration’s changes in coverage rules “could saddle their states with the cost of dealing with thousands of unplanned pregnancies and as many as 127,000 women losing access to no-cost contraception,” according to The Philadelphia Inquirer. A Philadelphia federal judge blocked the administration’s rules in 2019 and the 2 states won a “nationwide injunction temporarily blocking the rules,” NPR reported.

In the past, the Court has been sympathetic to employers’ religious exemptions. In 2014, the Supreme Court took up the case of Burwell v Hobby Lobby Stores and ultimately ruled that requiring family-owned businesses to pay for insurance coverage for contraception violated the Religious Freedom Restoration Act of 1993. The Trump administration invoked the same act in its objection to the injunction.

Responding to the Supreme Court’s decision to hear the case, Josh Shapiro, the Pennsylvania attorney general, said, “Two federal courts have blocked the Trump administration's rules because they would allow virtually any employer to deny women access to contraception for any reason—including the belief that women should not be in the workforce,” according to NPR.

An attorney with the religious liberty group, the Alliance Defending Freedom, Kristen Waggoner, said of the case, “They're not interfering [with employees’ choices]. This is about whether a person can run their business in a way that’s consistent with their beliefs.…It’s about the right of all religious organizations and people of faith.”

This announcement comes as the landmark Supreme Court decision in Roe v Wade, ensuring a woman’s right to abortion, marks its 47th anniversary on January 22.

In March the Supreme Court will also hear its first abortion case with Justice Kavanaugh on the bench. June Medical Services v Gee challenges whether a Louisiana law requiring any physician who performs an abortion to have admitting privileges at a local hospital conflicts with a 2016 precedent set in Whole Woman’s Health v Hellerstedt.

In 2018 Kavanaugh replaced Justice Anthony Kennedy, who historically was a swing vote on abortion cases, according to Kaiser Health News. More than 200 Republican members of the House and Senate filed a brief on January 2, urging justices to use Gee to overturn Roe.

“The Louisiana case is the first chance for what would appear to be a clear five-vote anti-abortion majority to rule,” the article said.