The Supreme Court seemed concerned Wednesday about the sweep of Trump administration rules that would allow more employers who cite a religious or moral objection to opt out of providing no-cost birth control to women required by the Affordable Care Act.
The justices heard their third day of arguments conducted by telephone because of the coronavirus pandemic. The first of two cases before them Wednesday stemmed from the Obama-era health law, under which most employers must cover birth control as a preventive service, at no charge to women in their insurance plans.
In 2017, the Trump administration announced it would broaden an exemption to the contraceptive coverage requirement that previously applied to houses of worship, such as churches, synagogues and mosques. But the change to “Obamacare” was blocked by courts.
The court’s four liberal justices suggested they were troubled by the new rules, which the government has estimated would affect about 70,000 women who would lose contraception coverage in one year as a result.
Chief Justice John Roberts, a key vote on a court split between conservatives and liberals, suggested that the Trump administration’s reliance on a federal law about religious freedom to say that the expansion was required or at least authorized was “too broad.”
Justice Ruth Bader Ginsburg, who joined the conversation from a Maryland hospital where she was being treated for an infection caused by a gallstone, gave the government’s top Supreme Court lawyer, Solicitor General Noel Franciso, what sounded like a lecture.
“You have just tossed entirely to the wind what Congress thought was essential, that is that women be provided these …. services with no hassle, no cost to them,” said Ginsburg, who is expected to be in the hospital for a day or two.
Beyond exempting churches, synagogues and mosques from the contraceptive coverage requirement, the Obama administration also created a way by which religiously affiliated organizations including hospitals, universities and charities could opt out of paying for contraception, but women on their health plans would still get no-cost birth control. Some groups complained the opt-out process violated their religious beliefs.
Trump administration officials in 2017 announced a rule change that allows many companies and organization with religious or moral objections to opt out of covering birth control without providing an alternate avenue for coverage.
New Jersey and Pennsylvania challenged the rules in court, and a judge blocked them from going into effect. The judge found the Trump administration did not follow proper procedures for issuing the rules. An appeals court agreed, and the administration appealed to the Supreme Court to step in, as did the Little Sisters of the Poor. The order of Roman Catholic nuns had been instrumental in challenging the Obama administration rules.
Even though the Trump rules remain blocked, a ruling by a federal judge in Texas in June already allows most people who object to covering contraception to avoid doing so.
The second case heard Wednesday involved a 1991 law aimed at protecting consumers from unwanted telemarketing calls. Political organizations that want to use automated calling to do things like make calls to encourage people to vote challenged the law as a violation of the First Amendment.