Supreme Court says employers may opt out of birth control mandate

The Supreme Court ruled Wednesday that employers and universities are allowed to opt out of the Affordable Care Act requirement to provide contraceptive care because of religious or moral objections.

The 7-2 decision sided with the Trump administration in its effort to greatly expand an exception approved by the Obama administration. The government estimates that it could mean that 70,000 to 126,000 women could lose access to cost-free birth control.

“We hold that the [administration] had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections,” wrote Justice Clarence Thomas, who was joined by Chief Justice John Roberts Jr., and Justices Samuel Alito Jr., Neil Gorsuch and Brett Kavanaugh.

The decision sent the case back to a lower court and instructed it to dissolve a nationwide injunction that had kept the exception from being implemented.

Liberal Justices Elena Kagan and Stephen Breyer agreed with the court conservatives’ decision to send the case back to lower courts, but did not join the majority opinion. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

At issue is the Trump administration’s decision in 2018 to expand the types of organizations that could opt out of providing cost-free access to birth control and the extent to which the government should create exemptions to the law for religious groups and nonreligious employers with moral and religious objections.

The Obama administration had narrower exceptions for churches and other houses of worship, and created a system of “accommodations,” or workarounds, for religiously affiliated organizations such as hospitals and universities. Those accommodations would provide the contraceptive care, but avoid having the objecting organizations directly cover the cost.

Under the Trump administration rules, the employers able to opt out include essentially all nongovernmental workplaces, from small businesses to Fortune 500 companies. And the employer has the choice of whether to permit the workaround.

The states of Pennsylvania and New Jersey initially challenged the rules, noting that when women lose coverage from their employers, they seek state-funded programs and services. Last summer, a unanimous panel of the U.S. Court of Appeals for the 3rd Circuit blocked the rules from taking effect nationwide. The court said the administration probably lacked authority to issue such broad exemptions and did not comply with requirements to provide notice and allow public comment on the rules.

In addition to the Trump administration, a charity called Little Sisters of the Poor defended the rules. The order of nuns, which runs homes for the elderly and employs about 2,700 people, points out that the government provided exemptions from the beginning for religious organizations such as churches. They say the accommodation provision violates the 1993 Religious Freedom Restoration Act, the law that says the government must have a compelling reason for programs that substantially burden religious beliefs.

In 2014, the Supreme Court in Burwell v. Hobby Lobby ruled that certain closely held businesses do not have to offer birth control coverage that conflicts with the owners’ religious beliefs. But the court did not take a position on the accommodation provision, which requires objecting organizations to notify the government.

Two years later, a shorthanded court of eight justices declined to rule on the merits of another challenge to the contraceptive-coverage requirement and sent the case back to the lower courts. The unusual, unsigned decision was viewed as a punt by a court then equally divided along ideological lines.