Since the Affordable Care Act (ACA) first became law in 2010, nearly 63 million people across the country have been able to access birth control through their employer-provided health insurance. But now, a case before the Supreme Court is threatening that access. On May 6, the Supreme Court heard oral arguments about the ACA's contraception mandate for the third time since it became law, this time as part of Trump v. Pennsylvania. Here's what to know about the birth control case at the Supreme Court, where advocates for religious freedom and reproductive justice are clashing once again.
The case in question is Trump v. Pennsylvania, which has been consolidated with the similar case of Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania. The question at the heart of both cases is substantially similar — who is eligible to get out of providing birth control to their employees on "sincerely held religious or moral objections" and what they have to (or don't have to) do to ensure those employees can access birth control elsewhere. The nitty-gritty of the cases are about what beliefs would qualify, and what kind of notification the employers would have to give their employees, as well as the government, that they didn't intend to cover birth control. This case marks the first time the Supreme Court has reviewed the Women's Health Amendment, part of the ACA, since conservative Justices Neil Gorsuch and Brett Kavanaugh were nominated to the court by President Donald Trump — but certainly not the first time the court has addressed this issue. For the past decade, the Supreme Court has struggled to resolve this issue, per Politico, as the court's conservative and liberal judges continue to clash on the extent of religious freedom.
Under the ACA, houses of worship were automatically exempted from having to provide birth control, but religiously affiliated institutions, like schools or hospitals, were not. In 2017, the Trump administration rolled back the Obama-era birth control mandate by broadly expanding exemptions to include nonprofits and for-profit companies that have "sincerely held religious or moral objections" to providing birth control coverage. Under the new rules, educational institutions, nonprofit organizations, and small businesses could seek either religious or moral exemptions from providing contraceptive coverage to their employees.
Although the birth control mandate has been reviewed by the court twice in the past — during Burwell v. Hobby Lobby in 2014 and Zubik v. Burwell in 2016 — Trump v. Pennsylvania is a little different. The previous two cases involved employers with religious affiliations arguing that they should be exempted from having to provide birth control coverage to their employees. Trump v. Pennsylvania, however, is ultimately trying to decide whether the Trump administration has the power to broaden exemptions to include any employer who offers a religious or moral objection to providing free coverage. The stakes are especially high in this case because, as Justice Sonia Sotomayor stated during the oral arguments, anywhere from 75,000 and 125,000 people across the country could either gain or lose birth control coverage depending on the Supreme Court's ruling.
Advocates have highlighted the stakes of the case, noting that the Trump administration's policy on "moral" exemptions was broad enough that it could encompass essentially any employer in the country. The moral exemption “does nothing to circumscribe what types of convictions may be used to invoke the exemption, nor does it have any mechanism to permit oversight," according to an April 8 brief filed in the case by the National Women's Law Center, and would thereby allow “an employer with a sincerely held moral conviction that women do not have a place in the workplace to simply stop providing contraceptive coverage."
On the other side, the Trump administration argued that the ACA doesn't explicitly require employers to provide birth control coverage, and that employers should have the discretion to decide for themselves whether they want to provide that coverage. Meanwhile, a representative for the nuns from Little Sisters of the Poor — a Catholic order that teamed up with the Trump administration to challenge the birth control mandate — argued that requiring employers to provide contraception coverage would violate the nuns' religious rights. The nuns, which run homes for the elderly, pointed to the 1993 Religious Freedom Restoration Act, which prevents the government "substantially burdening a person's exercise of religion" unless doing so "furthers a compelling governmental interest." (Notably, there's not a whole lot at stake for the nuns, as Little Sisters of the Poor is already effectively exempted from the requirement, as noted by The Intercept.)
According to the Kaiser Family Foundation, employer health care plans provide free birth control coverage to nearly 63 million people. A broader religious or moral exemption like the one the Trump administration has proposed would therefore threaten millions of people's access to contraceptive services, which reproductive justice advocates are working hard to prevent.
In a January interview with Elite Daily, NARAL President Ilyse Hogue made it clear just how high the stakes are in cases like Trump v. Pennsylvania. Cases like this are part of a bigger picture, Hogue said at the time, in which conservative factions are working against reproductive justice from various angles, including birth control. "It’s not and never has been just about denying people access to abortion," Hogue said. "It is actually about using reproductive services or the lack thereof to force people to live a certain type of life."
Indeed, during the May 6 oral arguments, Chief Justice John Roberts expressed his frustration "that neither side wants the accommodation to work," referring to the Obama-era workaround that allows certain employers to avoid providing birth control coverage while obligating insurers to provide contraception directly to employees. Meanwhile, Justice Ruth Bader Ginsburg — who dialed into the oral arguments from her hospital bed during her recovery from a gallbladder infection — led the charge against the Trump administration's rules. "The glaring feature of what the government has done in expanding this exemption is to toss to the winds entirely Congress’ instruction that women need and shall have seamless, no-cost comprehensive coverage," Ginsburg said.
While there is no definitive date for the Supreme Court's decision in this case, a ruling is expected in this case in mid to late June, which is when the court typically rules on high-profile cases.