Justices split over religious exemptions for ObamaCare birth control mandate

The Supreme Court on Wednesday appeared sharply divided over the Trump administration's move to broaden religious exemptions for companies that object to covering birth control for their female employees.

The latest challenge to the 2010 Affordable Care Act (ACA) saw the justices air divergent views about the expanded carve-outs for employers who oppose contraception, but are required by law to offer health plans to workers.

Justice Ruth Bader GinsburgRuth Bader GinsburgBiden refuses to take position on packing Supreme Court In rare move, Schumer forces vote to consider health care bill amid Supreme Court tensions Fox News tops broadcast networks for first time in 3rd quarter MORE, the bench’s senior-most liberal, said the administration’s far-reaching exemptions clash with congressional intent to cover birth control costs under the ACA, also known as ObamaCare.

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“What the government has done in expanding this exemption is to toss to the wind entirely Congress’s instruction that women need, and shall have, seamless, no cost, comprehensive coverage,” Ginsburg said.

Wednesday marked the third consecutive day justices heard oral arguments by conference call, as part of the court’s response to the coronavirus pandemic. Ginsburg, who is recovering from treatment for a benign gallbladder condition, participated from a hospital.

The case stems from a highly litigated question that arose roughly a decade ago in the early days of ObamaCare: Do employers who oppose contraception need to pay for workers’ birth control?

In the Obama era, religious nonprofits could claim an exemption. But under the Trump administration, federal agencies granted eligibility to employers based on either religious or moral objections.

Justice Brett KavanaughBrett Michael KavanaughBarrett says Trump offered her Supreme Court nomination three days after Ginsburg death The Hill's 12:30 Report - Sponsored by The Air Line Pilots Association - Judge Amy Coney Barrett makes the rounds on Capitol Hill The Hill's Morning Report - Sponsored by JobsOhio - Showdown: Trump-Biden debate likely to be nasty MORE, a Trump appointee, said the ACA seems to give agencies wide latitude to strike a balance between religious liberty and women’s health.

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“When you have that kind of broad language, you're going to get different executive branches who are going to exercise their discretion within that broad language and balance the interests differently,” Kavanaugh said.

The ACA’s so-called employer mandate requires companies with 50 or more employees to offer health insurance. For female workers, plans must include “preventative care and screenings” — a term that the Department of Health and Human Services (HHS) has defined differently under the Obama and Trump administrations.

Under former President Obama, HHS and other federal agencies responsible for implementing the law chose to exempt religious nonprofits from having to pay for birth control. The agencies also crafted a workaround solution. When an employer claimed religious exemption, the federal government would step in to encourage the company’s third-party health insurer to cover workers’ contraceptive costs directly, freeing the employer of the burden.

But numerous religious organizations sued. They claimed the accommodation was nothing more than a smokescreen that made them complicit in paying for workers’ birth control, in violation of religious freedom.

The Trump administration broadened the birth control exemption to encompass nearly all for-profit and nonprofit employers who objected on religious or moral grounds, and made the accommodation optional.

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That change, which would leave up to 125,000 women per year without contraceptive coverage, prompted Pennsylvania and several other plaintiffs to sue. The legal challenge alleges that federal agencies under President TrumpDonald John TrumpFive takeaways from Trump-Biden debate clash The Memo: Debate or debacle? Democrats rip Trump for not condemning white supremacists, Proud Boys at debate MORE exceeded their authority and failed to follow proper procedure in enacting the expansion.

A federal district court sided with the challengers and granted a nationwide injunction. The Court of Appeals for the 3rd Circuit affirmed the lower court ruling, prompting the appeal to the Supreme Court.

The two consolidated cases argued Wednesday were Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, and Trump v. Pennsylvania.  

Jessie Hellmann contributed to this report.