Employers Win Religious Opt-Out in Supreme Court Birth Control Coverage Case

Author: David B. Weisenfeld, XpertHR Legal Editor

July 10, 2020

The Supreme Court has ruled that employers with religious or moral objections to birth control may deny contraceptive coverage to their employees under the Affordable Care Act (ACA).

The Court's 7-2 decision in Little Sisters of the Poor v. Pennsylvania means that more than 126,000 women could immediately lose access to free birth control coverage that formerly had been available to them, according to government estimates.

The ACA mandates that birth control services be provided at no additional cost to employees. But the Court sided with Trump administration rules that permit employers to opt out of providing such coverage on religious or moral grounds.

Writing for the majority, Justice Clarence Thomas said, "The ACA mandate substantially burdened the free exercise of religion and on certain objecting employers." He also cited the Court's 2014 Hobby Lobby ruling that the government must accept the sincerely held objections of religious entities.

In a concurring opinion, Justice Samuel Alito acknowledged there is no question that the contraceptive mandate provides a benefit that many women find desirable, but he said Congress did not regard free contraceptives as a "compelling" interest.

But in dissent, Justice Ruth Bader Ginsburg disagreed. She asserted that Congress did not want employees to bear such costs. "This Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer's insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets."

Job Bias Laws Do Not Protect Religious School Teachers

In a separate decision issued the same day, the Supreme Court also held 7-2 that employment discrimination laws do not protect teachers at church-run schools. The Court reasoned that the First Amendment does not permit courts to intervene in employment disputes involving teachers at religious schools whose jobs involve instructing students in the faith.

This finding in Our Lady of Guadalupe School v. Morrissey-Berru applies not only to teachers at Catholic schools, but could affect many other employees of religious organizations. For instance, it raises the question of whether LGBTQ employees - who won a major Supreme Court victory just last month - would be barred from bringing claims against religious-based employers.