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Ruth Bader Ginsburg.
Reuters
RBG objects.
LET'S GO THERE

RBG says women are being “tossed to the wind” in Supreme Court birth control case

Washington DC
Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

The US Supreme Court today heard oral arguments in controversial cases about religious and moral objections to contraception coverage under the Affordable Care Act. The Trump administration expanded existing “conscience exemptions” dramatically but a nationwide injunction has so far blocked the new rules from going into place.

The justices’ phone debate was long and sometimes painfully technical. However, distilled, the issue at the heart of these matters is relatively simple: Is the government appropriately balancing competing interests, walking the middle path between the right to religious freedom and women’s rights?

Ruth Bader Ginsburg didn’t seem to think so. Historically, she noted, Congress and courts have handled the tension between faith and other freedoms by affording equal respect, seeking solutions tolerant of all and recognizing a divergence of views. But under the expanded exemptions, the view of religious freedom fighters are fully credited, Ginsburg argues, while women are left in the lurch.

Before the rule changes in question arose, under the Affordable Care Act women were entitled to contraception coverage and the institutions that insured them had to provide it in their plans unless they were houses of worship. Businesses that objected could also opt out, but women could still get contraception through the insurer.

The new rules go far beyond that by adding a vague “moral objection,” eliminating the need for institutions to notify women of objections to coverage, expanding the categories of institutions that qualify, and forcing women to search for alternatives programs, like Medicare, or pay for birth control out of pocket.

Ginsburg said “the glaring feature” in the government’s expanded exemption is “to toss to the wind entirely Congress’s instruction that women need and shall have seamless no-cost coverage.” She reminded solicitor general Noel Francisco “in this area of religious freedom the major trend is not to give everything to one side and not the other.”

In prior high court cases that debated this issue—and there have been a few—the justices always assumed there would be a way for institutions with sincerely held religious beliefs to object to coverage that contradicts their faith, all while ensuring that their faith would not harm women who don’t share those beliefs. The rule changes, however, end up doing what Ginsburg believes is “precisely what Congress did not want to happen.” 

The broad sweep

Chief justice John Roberts also questioned the extent of the exceptions. He asked Francisco: “Why doesn’t it sweep too broadly?”

Roberts said the new rules reached “far beyond” what is required by the Religious Freedom Restoration Act and the court’s precedent. Indeed, under the new regime, protection from coverage requires no articulation of faith, and no sincerely held belief that paying for contraception means being complicit in undermining religious tenets. “Not everybody who seeks protection from coverage has those same objections,” Roberts pointed out.

Francisco disagreed about the broad sweep and countered, “I don’t think so.” In his view, the law requires the government to ensure there is no substantial burden on people of faith who object to participation in programs that contradict their beliefs and to “lift” any such burden if there is.

He flipped the script on the justices’ objections and argued that states opposing the rule changes—Pennsylvania and New Jersey—take a position that would invalidate even the prior exceptions. The federal government, Francisco said, doesn’t have to be “parsimonious” in affording leeway to conscientious objectors.

Francisco also dismissed the notion that the rules would impact many women, raising the controlled ire of Sonia Sotomayor.

Let’s go there

Sotomayor was evidently displeased with Francisco’s take, beginning her questioning with a statement. “First of all you keep calling it a small number of women who won’t get coverage—I  understand it to be between 75,000 and 125,000.”

Francisco conceded this was true, noting that the previous exceptions only affected about 30,000 women. Still, he argued that the rule challengers had yet to identify anyone who could not access birth control because of the limits, saying it was widely available anyway.

“Let’s go there,” Sotomayor replied, sounding miffed. “In your calculus what you haven’t considered or told me about is the effect on women who have to go out and search for contraceptive coverage if they can’t personally afford it. I just wonder if there is no substantial burden [on conscientious objectors] how can the government justify an exemption that deprives [women] of coverage?” 

The solicitor general argued that no additional burden falls on women—only to meet with more resistance from the next questioner, Elena Kagan. She echoed Roberts and said the new rule “sweeps far more broadly and essentially scraps the exemption even for those with no religious objection.” As such, any employer could arguably deny this coverage simply because it didn’t feel like paying for it, ultimately leaving millions of women vulnerable.

Francisco said this would never happen because “that would be irrational.” Practically speaking, providing contraceptive coverage doesn’t actually cost institutions more than declining would, so there would be no motivation to deprive the insured if not for true faith.

Balancing act

While the rule challengers also faced questioning, the sense from much of the bench was that the justices wanted to see the issue, which they have pondered repeatedly, dealt with less extremely. The middle ground that the court says it champions can’t easily be found here, they indicated. And the new rules don’t accommodate all the interested parties, as precedent dictates, instead extending beyond what’s necessary.

Ginsburg, for example, asked the rule challengers where the “moral objection” came from. Counsel for the states explained that this added exception was designed by the Health Resources and Services Administration (HRSA), saying, “It’s unlikely Congress would delegate that authority to create religious and moral exemptions given that [the agency has] no expertise in that area.”

Some of the justices focused on more technical issues, for example whether a lower court can impose a nationwide injunction, as happened here, or if states had standing to object to the exceptions without more evidence of harm. There are a lot of questions to decide here, the interaction of multiple statutes to consider, and no shortage of case law on the tension between competing freedoms.

That means we can expect many long opinions besides the majority decision—concurrences and dissents galore, in whole or in part, parsing the technical matters. And it’s practically guaranteed that we’ll see Ginsburg employ the terms “tossed to the wind” and “thrown to the wind” a few times, just as she repeated them continually during today’s intense arguments. 

The matters are expected to be finally decided by term’s end in late June. 

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