Supreme Court Weighs Contraceptive-Care Case of Interest to Religious Schools

By Mark Walsh — May 06, 2020 5 min read
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The U.S. Supreme Court on Wednesday took up arguments in the latest chapter of a thorny legal fight over whether many religious employers, including schools and colleges, may be exempted on religious grounds from a requirement to cover contraceptives that stems from the Affordable Care Act.

The case stems from the 2010 health law’s requirement that most large employers must offer group health plans with “minimum essential coverage,” which was interpreted by the U.S. Department of Health and Human Services under President Barack Obama’s administration to require coverage of contraceptives.

Under those rules, churches and certain other religious organizations (church auxiliaries and the religious activities of religious orders) were exempted from the contraceptive mandate, but HHS declined to exempt many other religious employers, including schools, colleges, nursing facilities, and other nonprofits.

Those rules were challenged by multiple religious employers who didn’t qualify for the exemption, including several Roman Catholic schools and colleges. The Obama administration offered an accommodation that allowed the religious employers to exclude contraceptive coverage while requiring their insurers to offer the benefit directly to female employees. But many of the religious employers objected to the accommodation, and the case ended up before the Supreme Court.

In its 2016 decision in Zubik v. Burwell, the high court set aside lower court rulings in favor of the federal government and tried to push the two sides to work toward a compromise that would allow employees of the religious organizations to receive contraceptive coverage through the employer’s insurance providers without requiring the religious groups to file paperwork with the government raising their religious objection.

In 2017, President Donald Trump’s administration issued new rules that expanded the church exemption to all religious employers. (The rules also allowed other organizations, including corporations, to raise religious or moral objections to providing contraceptive care).

The new rules were challenged in court by New Jersey and Pennsylvania, and two lower courts blocked the rules from taking effect nationwide. The Trump administration and one religious organization that was not exempted under the Obama-era rule, appealed to the Supreme Court in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (No. 19-431) and Trump v. Pennsylvania (No. 19-454).

In the new case, the religious schools and universities that participated in the 2016 case are not officially back before the high court, and some of them have separate injunctions that exempt them from the contraceptive mandate. But others depend on the Trump administration rule.

The justices heard 90 minutes of arguments over the telephone on Wednesday as the coronavirus pandemic has brought about new procedures and the court scheduled rare May arguments.

Justice Ruth Bader Ginsburg, participating from a hospital bed in Baltimore where she was being treated for an infection related to a gallstone, questioned the scope of the Trump administration’s rule.

“The glaring feature of what the government has done in expanding this exemption is to toss to the winds entirely Congress’s instruction that women need and shall have seamless, no-cost, comprehensive coverage,” she said. “The church itself is different from these organizations that employ a lot of people who do not share the employer’s faith.”

U.S. Solicitor General Noel J. Francisco, defending the Trump administration rules, said the original church exemption was not aimed only at religious employees but encompassed many “elementary schools, high schools, colleges, universities, charitable organizations, hospitals, and other healthcare organizations.”

He did not specifically address a circumstance that was highlighted in the Zubik case before the Supreme Court, in which some Catholic schools were exempted and others were not, based on their structural relationship to their local dioceses.

“For example, within the same Catholic diocese, some Catholic elementary schools were exempt from the mandate while others were not,” says a friend-of-the-court brief filed in support of the Trump administration rule by the Catholic Benefits Association.

Michael J. Fischer, the chief deputy attorney general of Pennsylvania, said the Obama administration’s rules “struck a balance that permitted objecting employers to opt out but still allowed their female employees to receive contraceptive coverage. These [Trump administration] rules, however, exempt such employers altogether even if they had no objection to this prior accommodation.”

Several conservative members of the court had tough questions for Fischer, with Justice Brett M. Kavanaugh suggesting the Trump rules were “reasonable, not maybe everyone’s preferred choice but at least within the bounds of reasonable.”

Chief Justice John G. Roberts Jr. asked Paul D. Clement, the lawyer for the Little Sisters of the Poor, to confirm that the religious group did not object to its employees receiving contraceptive coverage.

“No, the Little Sisters don’t have any objection if their employees receive those services from some other means. Their objection essentially is to having their [health-insurance] plans hijacked and being forced to provide those services through their own plan and plan infrastructure.”

Roberts said if the certification that Little Sisters and other religious employers were eliminated but the government could still ensure that employees received the contraceptive care, then “why isn’t that sort of accommodation sufficient? I didn’t understand the problem at the time of Zubik, and I’m not sure I understand it now.”

Clement said his clients wouldn’t “have an objection to simply objecting to the government and then, if the government has some way to provide the contraception services independently of us and our plans, we’ve never had an objection to that.”

But the government has always insisted on an opt-out form, he added, “and that’s always been the gravamen of our objection. It’s never been an objection to objecting itself.”

The chief justice said, “The problem is that neither side in this debate wants the accommodation to work.”

A decision in the case is expected by the end of the court’s term, which is normally in late June but some expect may seep over into July.

A version of this news article first appeared in The School Law Blog.