WASHINGTON — The Supreme Court on Wednesday will consider whether the Trump administration can give employers more leeway in refusing to provide employees with free birth control by citing religious or moral objections.
Women's rights groups said that if the change is upheld, tens of thousands of women nationwide would be denied coverage.
"Birth control is essential health care that nearly 9 in 10 women will use in their lifetimes. It's a basic health care and an economic issue," said Alexis McGill Johnson, acting president of Planned Parenthood.
Since Congress passed the Affordable Care Act in 2010, the issue of which employers can decline to include coverage for contraceptives in their health care plans has remained unresolved — and highly controversial.
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Churches and their auxiliaries were originally given an exemption. In a later rule, the government allowed some nonprofit religiously affiliated employers an accommodation: They could opt out of directly providing the coverage, as long as they gave notice of their objections. Their insurers or the government would then pick up the cost of the coverage.
The current case involves Trump administration rules that would allow publicly traded companies and large universities to claim religious objections for refusing to provide the coverage. Even more broadly, employers and schools with any moral objection would also be exempt from the requirement.
"We will not allow people of faith to be targeted, bullied or silenced anymore," President Donald Trump said when the rule was imposed.
New Jersey and Pennsylvania sued, saying they would have to pick up most of the cost of contraceptive coverage, and a federal appeals court last year blocked enforcement of the rule nationwide. The Trump administration and the Little Sisters of the Poor, an order of Catholic nuns that has consistently fought the contraceptive insurance requirement, asked the Supreme Court to take their appeal.
In its court filing, the Justice Department argues that the exceptions should be broader, because many employers sincerely believe that any use of their health plans to provide contraceptive coverage — even if they are not directly involved in the process — makes them complicit in a violation of their religious beliefs. A federal law, the Religious Freedom Restoration Act, allows federal agencies "to be more protective of religious rights than might strictly be required," the government says.
But the states say Congress gave federal agencies the power to decide only what kind of preventive care must be provided in employer health plans, not who must cover those services.
The Obamacare law "does not grant the agencies authority to exempt broad classes of employers from their obligations," they say, and the accommodation eliminates an objecting employer's direct role in providing the coverage but still allows female employees, students and other beneficiaries to receive the care they need.
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In a 2014 case involving Hobby Lobby stores, the Supreme Court said a private, religiously oriented and closely held company could get an exemption from the contraceptive mandate on religious grounds. The Trump administration rule would expand the exemption and let even publicly held companies seek exemptions.
In 2016, the Supreme Court considered whether religious freedom is violated if employers must tell the government that it would violate their religious freedom to provide contraceptive coverage for their employees, so the administrator of their plan can take over. But the death of Justice Antonin Scalia left the court with eight members, and the case ended in an apparent 4-4 tie, which provided no answer.
Wednesday's case is one of 10 the justices will hear by telephone conference call. Arguments originally scheduled for March and April were called off because of the coronavirus pandemic. The court will issue its decision by late June.
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