WASHINGTON — The U.S. Supreme Court on Wednesday seemed divided on Trump administration rules that would give employers more leeway in refusing to provide their employees free birth control by citing religious or moral objections.
The case argued Wednesday involved rules that would allow publicly traded companies and large universities to claim a religious objection for refusing to provide the contraceptive coverage. Even more broadly, employers and schools with any moral objection would also be exempt from the requirement.
Women's groups said if the rules are upheld, tens of thousands of women nationwide would be denied coverage. "Birth control is essential health care that nearly nine 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.
Four of the court's conservatives suggested during the oral argument, conducted over the telephone because of the coronavirus pandemic, that the Affordable Care Act gave a federal agency the authority to grant those kinds of exceptions. Four the court's liberals asked questions suggesting they did not see it that way.
Chief Justice John Roberts, who likely has the deciding vote, asked, "I wonder why it doesn't sweep too broadly." He said the Trump plan allows employers to decline offering the coverage for reasons unrelated to religion.
Justice Ruth Bader Ginsburg was among those clearly opposed to the Trump rules.
"The glaring feature of what the government has done in expanding this exemption is to toss to the winds entirely Congress's instruction that women need and shall have seamless, no-cost, comprehensive coverage. This leave the women to hunt for other government programs that might cover them."
She spoke a room at Johns Hopkins Hospital in Baltimore, Maryland, where she was treated Tuesday for a gallbladder infection. The court said she would likely remain in the hospital for a day or two.
Since Congress passed Obamacare 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. Houses of worship and their auxiliaries were originally given an exemption.
In a later rule, the government allowed some non-profit religiously affiliated employers an accommodation: they could opt out of directly providing the coverage, as long as they gave notice of their objection. Their insurer or the government would then pick up the cost of the coverage.
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New Jersey and Pennsylvania sued, saying they would have to pick up must 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 who have consistently fought the contraceptive insurance requirement, asked the Supreme Court to take their appeal.
Several of the court's conservatives said Wednesday that federal agencies have the power to make exceptions for employers who conscientiously object to providing contraceptive coverage. Justice Brett Kavanaugh said the Trump rule should be upheld as long as it's considered reasonable.
Solicitor General Noel Francisco said 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. And he said a federal law, the Religious Freedom Restoration Act, gives the government the authority to act when a law would substantially burden religious beliefs.
But Michael Fischer, representing Pennsylvania, said 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. Under the Trump rules, virtually any employer or college could opt out of providing contraceptive coverage entirely, "including for reasons as amorphous as vaguely defined moral beliefs."
In a 2014 case involving the 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 an exemption.
Then in 2016 the Supreme Court considered whether religious freedom is violated if employers must tell the government it would violate their religious freedom to provide contraceptive coverage for their employees, so that 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 and apparent 4-4 tie, which provided no answer.
Wednesday's case was one of 10 the justices will hear by telephone conference call. Arguments originally scheduled for March and April were called off because of the conoronavirus pandemic. The court will issue its decision by late June.
