Supreme Court Hears High-Stakes ACA Birth Control Coverage Case
Author: David B. Weisenfeld, XpertHR Legal Editor
May 7, 2020
The Supreme Court heard arguments in a case that could make it easier for employers to deny their employees contraceptive coverage by claiming conscientious religious or moral objections.
The Affordable Care Act (ACA) mandates that birth control services be provided at no additional cost to employees. However, the Trump administration published rules to permit publicly traded companies to opt out of providing such coverage on religious or moral grounds. They emphasized that female employees could use alternatives such as family-planning clinics rather than seeking birth control services through the ACA.
But Justice Ruth Bader Ginsburg repeatedly noted in Little Sisters of the Poor v. Pennsylvania that Congress did not want employees to have to pay out-of-pocket costs. "Women are entitled to full and equal health coverage, including contraceptive coverage," said Justice Ginsburg. She said the administration's rules shifted the employers' religious beliefs onto employees who do not share those beliefs. "The women end up getting nothing," she added.
Due to the coronavirus (COVID-19) outbreak, the Court heard arguments by phone this week for the first time in its history after cases were cancelled in March and April. Justice Sonia Sotomayor alluded to the pandemic during the arguments in making the following point to a lawyer representing the employer:
"Assume that the government tomorrow passes a law that says every insurance company must reimburse every policyholder they have for the COVID-19 vaccine. If someone has a religious objection, they say that they can be exempted from it. But you, insurance carrier, must pay for anyone who submits for a COVID-19 vaccine. Can the employer object to pay through that policy?"
The lawyer said the employer would not be able to object, but Justice Sotomayor seemed unconvinced and said the same rules that apply to vaccines apply here to contraceptives.
Representing the Trump administration, Solicitor General Noel Francisco noted that the Little Sisters viewed the ACA's mandate as a "hijacking of their plan." And he cited the Supreme Court's 2014 Hobby Lobby ruling that owners of privately held companies could object to the health care law's contraception mandate for religious reasons.
Several of the Court's conservative justices appeared to side with that position in their questioning. For instance, Justice Samuel Alito agreed Hobby Lobby should dictate the outcome of this case. He suggested that a federal court does not have the right to suggest that a person is wrong on the question of "moral complicity" if they believe helping provide coverage would have the effect of enabling a person to commit an immoral act.
The result may ultimately turn on the vote of Chief Justice John Roberts. In one of his questions, the Chief Justice wondered whether the administration's rule "sweeps too broadly." But the Chief Justice also voted in favor of an ACA exemption in Hobby Lobby.
It is estimated that the exemptions from coverage at issue would affect between 75,000 and 125,000 women. The Supreme Court is expected to issue a ruling by the end of June.