The Supreme Court Is Deciding Whether Your Boss Can Control Your Birth Control Access

By Olivia Graziano

On May 6, in a teleconference aired live on C-SPAN, the U.S. Supreme Court heard arguments in two consolidated cases that could result in hundreds of thousands losing insurance coverage for their contraception. The two cases, Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania, will decide the fate of a 2017 Trump administration rule that would allow nearly any university or employer, nonprofit or for-profit, to refuse to include contraception in their health insurance plans for religious or “moral” reasons.

Currently, the Patient Protection and Affordable Care Act (ACA) requires most employers and universities to cover all forms of Federal Drug Administration-approved contraception with no co-pay in their employee health insurance plans. With Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania, the Supreme Court’s new conservative majority could essentially eliminate the ACA’s contraception mandate, threatening the guaranteed contraception access that millions of Americans gained when the ACA passed in 2010.

Contraception is a vital part of reproductive healthcare. People use birth control to reduce severe menstrual symptoms, manage polycystic ovary syndrome, and, of course, to prevent unplanned pregnancy. And it’s incredibly common — 99 percent of sexually active women use birth control at some point. Birth control access is key to being able to plan your future and control your own health. Decisions about contraception should be made by the person using it, not their boss.

Because of the ACA mandate, over 60 million women receive contraception with no out-of-pocket costs through their employer health plans, saving them an estimated $1.4 billion per year. If the Supreme Court allows the Trump rule to go into effect, that access could disappear for many, with particularly extreme consequences for people who cannot afford the out-of-pocket costs of contraceptives they’ll be faced with if the ACA mandate disappears.

The Trump administration rule doesn’t protect religious freedom. It gives employers the power to impose their own beliefs on their employees, with potentially severe consequences for those employees’ reproductive health and personal autonomy.

The Culmination of Years of Court Battles

The Trump administration rule at the center of Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania followed years of efforts by religious institutions to dismantle the ACA’s contraception mandate.

The ACA exempted houses of worship, like churches and synagogues, from the mandate from the start, but not religiously affiliated nonprofit employers like universities and hospitals. For those non-exempt institutions, the Obama administration established an accommodation — religiously affiliated nonprofits still had to cover contraception in their insurance plans, but the insurance company or the government would pay for it instead of the employer.

In 2014, in Burwell v. Hobby Lobby, the Supreme Court ruled that for-profit companies could also opt out of the contraception mandate if the owners had a religious objection. However, the Court required those newly exempt employers to use the Obama administration’s accommodation to maintain their employees’ contraception coverage.

For some religious groups, however, this ruling didn’t go far enough. They wanted a broader exemption to the contraception mandate that would allow them to forgo the accommodation, like that granted to churches. In 2016, religious institutions brought the birth control fight back to the Supreme Court with Zubik v. Burwell. In Zubik, religiously affiliated nonprofit groups argued that they should not have to use the accommodation and that employees should have to independently procure contraception coverage. These employers didn’t want to play any role in providing contraception to their employees, even if they weren’t paying for it. Zubik ended in a deadlock after Justice Antonin Scalia’s death, and for a short period, the contraception issue stalled in lower courts.

Then, in the fall of 2017, the Trump administration gave the religious right the victory they had been looking for. The administration rolled out a new rule that would entirely exempt nonprofits and for-profit companies from the contraception mandate if they had religious objections or “sincerely held moral convictions opposed to coverage of some or all contraceptive or sterilization methods.” The new rule would also allow those exempted employers to decide not to use the Obama-era accommodation, effectively denying their employees the contraception access they’re guaranteed by the ACA.

“Moral convictions,” is, of course, an incredibly vague term that the Trump rule doesn’t define or limit. Virtually any employer could claim an exemption for virtually any reason. For example, notes the National Women’s Law Center in their amicus brief, “an employer with a sincerely held moral conviction that women do not have a place in the workplace to simply stop providing contraceptive coverage.”

Pennsylvania and New Jersey both challenged the Trump rule in court. The U.S. Court of Appeals for the 3rd Circuit blocked it from taking effect, ruling that the administration had overreached its authority and had violated federal requirements for allowing public comment on proposed rules (yes, the Trump administration tried to enact this rule without any public comment period — an interesting sign of their confidence in the rule’s popularity).

That ruling brought the ACA contraception mandate back to the Supreme Court less than three years after they last weighed in on it. However, since the rulings in Zubik and Hobby Lobby, the Court’s makeup has changed in an important way: the Trump administration appointed Justices Neil Gorsuch and Brett Kavanaugh.

Frustration and Ambiguity During the Arguments

The justices seemed frustrated to once again have to examine religious objections to the ACA’s contraception mandate, especially given the existence of the Obama-era accommodation. “There was an existing accommodation in place,” said Justice Elena Kagan. “The rule sweeps far more broadly than that and essentially scraps the existing accommodation even for employers who have no religious objection to it. And sort of by definition, doesn’t that mean that the rule has gone too far?”

“The problem is that neither side in this debate wants the accommodation to work,” said Chief Justice John Roberts.

As expected, Trump appointees Kavanaugh and Gorsuch painted the administration’s rule as an appropriate balance between religious freedom and healthcare access. “If we get down to the bottom line of is this reasonable, not maybe everyone’s preferred choice but at least within the bounds of reasonable, why isn’t this a reasonable way to balance it?” Kavanuagh asked Michael Fischer, the Chief Deputy Attorney General of Pennsylvania.

Kavanaugh is blatantly mischaracterizing the rule — it’s not a reasonable compromise or a balance of interests. It’s not a compromise at all when it gives one side of the power to revoke healthcare access for thousands of people, as Justice Ruth Bader Ginsburg pointed out: “In this area of religious freedom, the major trend is not to give everything to one side and nothing to the other side,” said Ginsburg, speaking from her hospital bed as she recovered from a gallbladder procedure. “We have had a history of accommodation, of tolerance.”

The rule, Ginsburg said, is “shifting the employer’s religious beliefs, the cost of that, onto these employees who do not share those religious beliefs. And I did not understand RFRA [Religious Freedom Restoration Act] to authorize harm to other people, which is evident here, that the women end up getting nothing.”

Going into the May 6 argument, legal experts expected the Court’s conservative majority to rule in favor of the Trump administration. The justices’ questioning, however, indicated that for some, the issue is more complicated than just Republicans versus Democrats. Roberts, a conservative justice, appeared to be struggling to balance the values of limited government and religious freedom and suggested the Trump rule is perhaps “too broad.” But even if some conservative justices joined the liberals to strike down the Trump rule on the grounds of it being an overreach of executive power, that doesn’t mean they support contraception access, and it certainly doesn’t mean the ACA’s contraception mandate is safe from future attacks.

Ignoring the Rule’s Impact

Justices Ginsburg and Sonia Sotomayor were the only ones to speak about whom the ruling will impact most: the thousands of people relying on the ACA for birth control.

“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,” said Ginsburg. “This leaves the women to hunt for other government programs that might cover them. And for those who are not covered by Medicaid or one of the other government programs, they can get contraceptive coverage only from paying out of their own pocket, which is exactly what Congress didn’t want to happen.”

Sotomayor, questioning Noel Francisco, who represented the Little Sisters, criticized the minimization of the rule’s impact. “First of all,” she said, “you keep calling it a small number of women who won’t get coverage, but I understand the figure to be between — somewhere between 75,000 and 125,000 women, correct?”

“I would note that in this particular litigation, the Respondents haven’t yet identified anyone who would actually lose access to contraception as a result of these rules,” Francisco replied. “I think presumably because access to contraception is widely available in this country through many other means.”

“Let’s go there,” responded Sotomayor. “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.”

Clearly, Francisco has never been in the position of someone trying to pay for contraceptives without insurance. Contraception may be “widely available,” but for many, particularly for people of color and young people, its cost makes it inaccessible. The National Women’s Law Center notes that studies have found that about a third of Latina and Black women report only being able to afford to spend $10 on contraceptives, which isn’t nearly enough to cover out-of-pocket expenses for most types of birth control. Hormonal birth control pills can cost up to $50 per month, and the Depo-Provera shot costs up to $240 per year. Longer term options have even higher up-front costs: an intrauterine device may cost $1,000, and a birth control implant can be over $800. Without the ACA’s contraception mandate, those costs will fall on people who may not be able to afford them. The economic crash and mass unemployment brought on by the coronavirus pandemic will only aggravate the problem.

Furthermore, the government estimate of the number of women who would lose contraception coverage under the Trump rule, 75,000 to 125,000 women, is likely an underestimate. Since the rule would allow nearly any employer to exempt itself from the mandate, not just those with clear religious ties, it could actually leave far more than 125,000 people without coverage.

Your Employer Shouldn’t Control Your Reproductive Health

Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania illustrate why employer-dependent health insurance is a problem: your boss shouldn’t be making decisions about your reproductive health. Contraception access is vital to people’s ability to control their reproductive health and plan their futures; just because an employer disapproves of contraception doesn’t mean they have the right to control their employees’ access to it.

Freedom of religion is, obviously, important. But freedom of religion doesn’t give people the right to impose their own beliefs on others. What about the religious freedom rights of employees who don’t share their employer’s opposition to contraception? Their right to control their own reproductive health shouldn’t take a backseat to their employer’s beliefs about the supposed morality of contraception.

Aside from their potential consequences for contraception access, Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania are significant for the way they were argued. These two cases were part of the first set of Supreme Court arguments ever broadcast live, a move to support social distancing efforts amid the coronavirus pandemic. Previously, if you didn’t want to wait until Friday for audio recordings of the week’s arguments to be published online, you had to physically go to DC and line up at the Supreme Court for the chance to get a spot inside to watch the proceedings. That was never a real option for people who can’t travel to DC or who have kids to take care of or who can’t take time off work or who have to go to school or who have a disability that makes it impossible to wait in line for hours. But it shouldn’t have taken a pandemic to make the Supreme Court more accessible. The public should have always been encouraged to pay attention to what’s happening in the country’s highest court, especially when their decisions can have such significant impacts for all of us. These live streams are just another example of the pandemic exposing a problem we’ve been ignoring and the steps we could have easily taken to remedy it before now.

The political leader of the pro-choice movement in Maryland.