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Argument analysis: After marathon argument, little consensus on future of birth-control mandate exemptions

The Supreme Court heard oral argument this morning in the latest chapter of the battle over the Affordable Care Act’s “birth-control mandate,” which generally requires employers to provide their female employees with health insurance that includes access to certain forms of contraceptives. In 2017, the Trump administration issued new rules that expanded an exemption from the mandate and allowed private employers with religious or moral objections to opt out of providing coverage without any notice. Two states, Pennsylvania and New Jersey, challenged the 2017 rules, and after nearly an hour and a half of debate over the telephone this morning – which Justice Ruth Bader Ginsburg joined from the hospital, where she is being treated for a gallbladder condition – there did not seem to be any consensus among the justices about how or whether the expanded exemptions should survive.

Disputes over the birth-control mandate first arose shortly after guidelines released by the government under the Affordable Care Act required employers to provide access to FDA-approved birth control at no cost to the women covered by the plan. The government excused churches and other houses of worship from having to comply with the mandate, and it created an “opt-out” process to accommodate religious nonprofits that objected to having to comply. In 2014, in a case called Burwell v. Hobby Lobby, a divided Supreme Court ruled that a corporation owned by a family with sincere religious objections to providing their female employees with birth control could also opt out of the mandate.

Two years later, another clash over the mandate came to the court – this time, a set of challenges by religious nonprofits who argued that the process created by the Obama administration to allow them to opt out of the mandate, which required them to notify the Department of Health and Human Services of their objection to the mandate, still placed a substantial burden on their exercise of their religion. The Supreme Court, which was operating with only eight members after the death of Justice Antonin Scalia, did not resolve the question but instead sent the cases back to the lower courts with instructions for the federal government and the challengers to negotiate a solution that would respect the nonprofits’ religious beliefs while still ensuring full coverage for their female employees. In 2017, the Trump administration issued the new rules – which create a carve-out for religious and moral objectors sometimes collectively referred to as the “conscience exemptions” – at the center of today’s argument.

Two of the court’s most liberal justices, Ginsburg and Justice Sonia Sotomayor, left little doubt that they believed that the exemptions go too far. Ginsburg told U.S. Solicitor General Noel Francisco, who defended the exemptions on behalf of the federal government, that a “glaring feature” of what the government has done is to “toss to the winds entirely” Congress’ intent that women have “seamless” contraceptive coverage, at no cost to them. Ginsburg acknowledged that courts need to accommodate both the interest of women in having that coverage and their employers’ religious beliefs, but she stressed to Francisco that she does not understand the Religious Freedom Restoration Act “to authorize harm to other people,” which she believes to be the case here.

Sotomayor echoed Ginsburg’s thinking, chiding Francisco for what she described as the government’s failure to account for the exemptions’ effect on female employees who would have to go out and obtain coverage for birth control if they could not afford it. How, Sotomayor queried, does the government justify an exemption that deprives those women of “seamless coverage?”

Francisco pushed back, telling the court that nothing in the ACA requires coverage for contraception at all. Instead, he emphasized, Congress gave the agencies discretion to decide whether birth control would be included. Indeed, Francisco noted, if the ACA did require coverage for all female employees, then the original exemption for churches would have been illegal from the start.

Justice Clarence Thomas, on the other hand, clearly seemed to be a vote to uphold the exemptions. He focused primarily on two issues that drew relatively little interest from his colleagues: whether Pennsylvania and New Jersey have a legal right to challenge the exemptions in the first place, and whether the lower courts should have entered an order barring the government from implementing the exemptions anywhere in the country.

Arguing on behalf of the Little Sisters of the Poor, a Catholic religious group that works with the elderly and the poor, and which entered the lawsuit to defend the exemption, Paul Clement conceded that under the Supreme Court’s prior cases, the states would have a right to sue. But, he added, throughout the litigation over this issue, the states have not been able to identify a single person who would lose her coverage, resulting in increased costs for the states.

Turning to the issue of nationwide injunctions, Clement suggested that it is “particularly inappropriate” for a court to issue an order that binds the government throughout the United States in a case like this one. One thing we should have learned from years of litigation over the ACA, Clement asserted, is that courts do not reach uniform decisions on this topic. For a single district court to have a monopoly on the rule that will prevail nationwide until the Supreme Court weighs in is not consistent with good practice or the way that our judicial system works, Clement concluded.

Michael Fischer, the chief deputy attorney general of Pennsylvania, argued on behalf of the states. He countered that the exemptions would indeed impose costs on Pennsylvania and New Jersey. And he rejected Thomas’ suggestion that there is a problem if nationwide injunctions are “this easy to get.” When there is a challenge to a federal regulation, granting nationwide relief is appropriate, Fischer maintained.

Justice Samuel Alito seemed sympathetic to the Little Sisters’ plight, asking Clement what the order would feel compelled to do if it lost the case and were required to provide coverage through its insurance plan. Have you identified the number of women who work for the Little Sisters, asked Alito, and want birth control but can’t get it?

Clement reiterated that the Little Sisters believe that complying with the mandate would be inconsistent with their faith. But in any event, he added, he had not heard of a single employee who believes that the group’s noncompliance with the mandate is a problem. The group’s employees understand the mission of the Little Sisters and don’t want to put the group in a difficult position, he explained.

Even as some justices staked out positions at either end of the ideological spectrum, others seemed to look for a middle ground. Chief Justice John Roberts led the way, asking Francisco whether the exemptions didn’t go too far, and Justice Elena Kagan repeated that concern a few minutes later. Even assuming that the government needed to take some employers’ religious objections to the mandate into account, Kagan told Francisco, the rule is much broader than that – allowing employers to opt out even if they don’t have a religious objection. Doesn’t that mean it goes too far?

Francisco assured Kagan that an employer without a genuine objection to providing birth control would have no need to invoke the exemption, because providing contraception does not result in any additional insurance costs.

But Fischer seized on this point, suggesting that under the moral exemption an employer could be completely exempt because it had a moral objection to women in the workplace – which, he argued, demonstrates how broad the exemption is. The exemption also applies to publicly traded companies, he observed, and there is no way to evaluate whether a company is sincere in its objections.

More broadly, Roberts and Justice Stephen Breyer expressed frustration that the different sides in this dispute couldn’t try to work out a solution that would respect the rights of the religious nonprofits while ensuring that female employees had access to birth control. Is it really the case, Roberts lamented, that there’s no way to resolve the differences?

If the two sides can’t arrive at a solution, Breyer continued, perhaps the next step is for a lower court to ask a different question. Does the “proper legal box” to resolve this dispute involve an inquiry into whether the rules creating the exemption are a reasonable effort to accommodate the various interests involved in this case?

Clement rejected Breyer’s suggestion, at least as applied to the Little Sisters’ case, telling him that this is not the kind of objection that the states have raised here. The Supreme Court could, Clement allowed, reject the states’ challenge but make clear that it would not foreclose another challenge by, for example, an employee of a for-profit company that had objected to the mandate.

Not all of Breyer’s colleagues were necessarily on board, however. Justice Neil Gorsuch observed that the argument in this case rests on the idea that the government has exceeded its statutory authority. The ACA, Gorsuch proposed, gives the federal agencies “very expansive authority.” And Justice Brett Kavanaugh seemed to suggest that, even if the court adopted the inquiry proposed by Breyer, the exemptions are reasonable.

In his rebuttal, Francisco urged the justices to bring the long dispute over the birth-control mandate “to a durable end.” Based on the justices’ questions today, it seems that they would certainly like to do that, but it’s less clear whether they agree on how. A decision in the case is expected by summer.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Argument analysis: After marathon argument, little consensus on future of birth-control mandate exemptions, SCOTUSblog (May. 6, 2020, 2:43 PM),