The US supreme court has upheld a broad expansion by the Trump administration of the pool of employers that can use religious objections to deny women insurance coverage for contraception.
The ruling, which struck down a lower court decision, could deprive up to 125,000 women of contraceptive coverage, Justice Sonia Sotomayor warned during oral arguments in the case in May.
Justice Clarence Thomas wrote an opinion for the 7-2 majority striking down a lower court’s finding that the Trump administration did not have the authority to issue such a broad order. “This decision,” Thomas wrote, “was erroneous.
“We hold that the Departments had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections,” Thomas wrote.
The Affordable Care Act, passed under Barack Obama, required employers to cover “preventive care” – a category including certain types of contraception – free of charge, allowing for some exemptions for churches and religious groups.
Corporations run by families with religious objections to covering the costs of contraception won exemption from the law in a subsequent high-profile supreme court decision, Burwell v Hobby Lobby (2014).
But soon after Trump took office, his administration issued new, much broader exemptions, which the states of Pennsylvania and New Jersey challenged in court.
Under Trump’s rules, any nonprofit employer or any for-profit employer in a company not publicly traded could claim an objection of conscience and be exempted from offering plans that included coverage for contraception.
Lawyers for the government in the case, Little Sisters of the Poor v Pennsylvania, argued that no employer who did not have bona fide moral objections to contraception would seek to take advantage of the exemption, because health insurance plans that include contraceptive coverage did not cost more than other plans.
But the states argued that the executive branch did not have the power to issue such a broad order. The current case did not significantly delve into the underlying constitutional issues tied to first amendment and equal protection claims in so-called “religious liberty” cases.
Alongside other major rulings in this court term, the religious exemption case offered a glimpse of how a new conservative majority on the court, installed under Trump, could shape public life for decades to come.
During oral arguments in the case, Justice Ruth Bader Ginsburg blasted the government for hollowing out the Affordable Care Act’s expansion of healthcare for women.
“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.
The Trump administration was “shifting the employer’s religious beliefs – the cost of that – on to employees who do not share these religious beliefs,” Ginsburg said.
Lawyers for the Trump administration argued that it made sense for exemptions extended to churches under the law to be expanded further.
Justices on the court’s liberal wing repeatedly returned the argument to the plight of women who would lose insurance coverage as a result of the exemption.
“In your calculus what you haven’t considered or told me about is the effect on women who now have to go out, as Justice Ginsburg said, and search for contraceptive coverage if they can’t personally afford it,” said Sotomayor during oral arguments. “And what I just wonder is: if there’s no substantial burden, how can the government justify an exemption that deprives those women of seamless coverage?”