May 7, 2020

Contraception Mandate

“The Supreme Court heard oral argument [Wednesday] morning in the latest chapter of the battle over the Affordable Care Act’s ‘birth-control mandate,’ which generally requires employers to provide their female employees with health insurance that includes access to certain forms of contraceptives. In 2017, the Trump administration issued new rules that expanded an exemption from the mandate and allowed private employers with religious or moral objections to opt out of providing coverage without any notice. Two states, Pennsylvania and New Jersey, challenged the 2017 rules.” The case involves “the Little Sisters of the Poor, a Catholic religious group that works with the elderly and the poor.” SCOTUSblog

See past issues

From the Left

The left urges the court to overturn the Trump administration’s accommodation in favor of that of the Obama administration.

“The Obama administration offered a workaround that pushed the cost of contraceptive care onto insurers and plan administrators, meaning that employers who objected to the coverage wouldn’t have to pay for it but their employees would still be covered automatically…

“The accommodation completely severed the employer’s connection to the coverage of birth control or the payment of claims… The heart of the case is whether the contraceptive mandate and the Obama administration’s workaround impose a substantial burden on the religious beliefs of employers. But if employers aren’t providing the contraceptive coverage, there is no burden on them.”
Jon Healey, Los Angeles Times

“The Obama administration compromise would have required objecting organizations simply to inform the federal government that they indeed object. From there, the government would have worked with the objectors’ health insurers to offer costless contraception directly to their employees. Beyond giving notice, the objectors would have suffered no further involvement and paid nothing for any contraceptive care their employees received…

“The mandate’s critics argue that the mere act of giving notice would be intolerable, and that nothing short of offering full exemptions to practically any employer that wants one will do. Federal law demands special care for the concerns of the faithful in striking a balance between religious liberty and governmental interests. It does not insist that there be no balance at all. The Obama administration accommodated all sides in good faith. The court should respect the principled balance that the Obama administration struck.”
Editorial Board, Washington Post

“Every member of the Supreme Court’s [conservative] majority has, in the past, expressed sympathy for religious objectors seeking exemptions from a generally applicable law. But each has also expressed a desire to limit federal agencies’ discretion to make policy. And on Wednesday, several of those conservative justices appeared to realize that these two goals are in tension — at least in the two Pennsylvania cases… [The cases] primarily ask whether the Trump administration has the power to give religious objectors a sweeping exemption, regardless of whether such an exemption is required by law…

“At least three of the Court’s [conservatives], Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, expressed concerns that the Trump administration may not have this power… [In a 2019 opinion] Gorsuch proposed revising the largely defunct ‘nondelegation doctrine,’ a constitutional doctrine briefly used in the 1930s to restrict Congress’s power to delegate authority to the Roosevelt administration. While Gorsuch’s opinion in that 2019 case, Gundy v. United States, is vague, it suggests that Congress must draft laws very precisely if it wants to delegate power to a federal agency… This suggests the possibility of a cross-partisan coalition to strike down the broad exemption.”
Ian Millhiser, Vox

“Allowing employers to opt-out of covering birth control in their insurance plans serves as a barrier for women trying to get the contraceptive method they need, deserve, and is right for them. Effectively, this would permit employers or insurance providers to decide about something as basic as who can use birth control and what methods they can use. Allowing such interference creates a slippery slope which would undoubtedly mean interference in other areas of health care. What’s next?…

“99 percent of women who have ever had sex with men have used a method of contraception at some point in their lives. According to our data, 76 percent of adults believe that birth control is a basic part of women’s health care and 86 percent support access to the full range of birth control methods — with strong support regardless of race, ethnicity, region, and political affiliation. Given the wide use of contraception and its broad public support we should not be putting up barriers to accessing it, we should be looking for ways to make it more accessible.”
Gillian Sealy, The Hill

From the Right

The right urges the court to uphold the Trump administration’s accommodation, arguing that it’s a reasonable compromise to protect religious liberty.

The right urges the court to uphold the Trump administration’s accommodation, arguing that it’s a reasonable compromise to protect religious liberty.

“Amicus briefs from groups like Planned Parenthood say women would be harmed if their bosses—who might or might not be nuns—can object to paying for contraceptives. But in 2017 the Health and Human Services Department estimated that the exemptions would not apply to more than 99.9% of women. Hobby Lobby’s critics in 2014 advanced alarming theories about whether, for example, an employer who was a Jehovah’s Witness could decline to pay for blood transfusions. Six years later, where is that parade of horribles?…

The United States has long been a beacon for religious liberty. Many Amish are exempt from Social Security. Even in times of world war, the U.S. has accommodated pacifists like Quakers and Brethren. Assuming the government has an interest in broadening access to contraception, surely that doesn’t require conscripting the health plans offered by Catholic nuns.”
Editorial Board, Wall Street Journal

One of the Little Sisters of the Poor writes, “We cannot hold the hands of the dying elderly while at the same time facilitating the ending of pre-born life. Our faith will not allow it…

“The government has already admitted that it has other ways to provide access to contraceptives without forcing religious sisters to participate. Not to mention that the states that have sued us to take away our hard-won victory haven’t taken issue with the broad exemptions to the contraceptive mandate for secular companies like Pepsi, Exxon, Visa and agencies of the government itself, like the U.S. military.”
Sister Loraine Marie Maguire, Fox News

“Catholic-run organizations are the largest non-governmental providers of health care, education, and charitable services to the poor and vulnerable in America. Catholics partner with local and state governments to address the growing foster-care crisis and to find ‘forever homes’ for children in need of adoption. They also minister to the needs of immigrants at our border, run food banks and soup kitchens, support pregnant women in need, stand against human trafficking, and respond to the humanitarian crises that follow natural disasters, armed conflict, and religious persecution…

“Enforcing the Affordable Care Act’s mandate without the Trump administration’s broad religious accommodation will push Catholics out of the nation’s public square. For the sake of religious freedom and the care of our most needy and vulnerable, the Supreme Court should put an end to these state officials’ latest expression of hostility to Catholicism. It’s high time to leave the Little Sisters of the Poor and other religious organizations in freedom and peace.”
Andrea Picciotti-Bayer, National Review

Dated But Relevant: “Because the regulation is so frequently described as a part of Obamacare, some people may be surprised to learn that it is not actually included in the Affordable Care Act. Obamacare merely required insurance plans to include cost-free access to preventive care ‘as provided for’ in forthcoming guidelines. The statute delegated the drafting of those guidelines to a sub-agency within the Department of Health and Human Services (HHS). It was HHS that actually promulgated the regulations that came to be known as the contraceptive or abortifacient mandate…

“In Zubik v. Burwell (the nuns’ [first] challenge to the mandate), the Supreme Court considered whether the non-profit accommodation cured the mandate’s legal infirmities. Rather than deciding the issue, the Court instructed the parties to negotiate ‘an approach going forward that accommodates petitioners’ religious exercise while at the same time’ satisfying the Obama administration’s goals… Clearly, the Supreme Court and the Obama administration believed that HHS had the power to amend the mandate and even to grant exemptions. Neither the California nor the Pennsylvania [district court] opinion offered any compelling reason why the Trump administration should not have similar abilities.”
Howard Slugh, National Review

A libertarian's take

“We shouldn't define access to mean covered-under-an-employer-sponsored-health-care-plan. There are much better ways to expand access—like freeing the pill from prescription-only status, getting rid of restrictions on mail-order pills, and backing community-based health solutions—than forcing the minority of companies that object to covering contraception to do so. Over-the-counter contraception sales and other solutions centered on free markets, technological advances, or localized needs have the ability to expand access to birth control for all who need it, not just those who already have a job and health care benefits.”
Elizabeth Nolan Brown, Reason

Get troll-free political news.

Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.