The Supreme Court on Wednesday upheld a Donald Trump administration regulation that lets employers with religious or moral objections limit women’s access to birth control coverage under the Affordable Care Act.
As a consequence of the ruling, about 70,000 to 126,000 women could lose contraceptive coverage from their employers, according to government estimates.
The vote was 7-2, with Justices Ruth Bader Ginsburg and Sonia Sotomayor dissenting.
Contraception coverage has emerged as a key battleground in the culture wars, one in which successive administrations have switched sides.
In the Obama years, the court heard two cases on whether religious groups could refuse to comply with regulations requiring contraceptive coverage. The new case presented the opposite question: Can the Trump administration allow all sorts of employers with religious or moral objections to contraception to opt out of the coverage requirement?
In March 2010, President Barack Obama signed the Affordable Care Act, which includes a section that requires coverage of preventive health services and screenings for women. The next year, the Obama administration required employers and insurers to provide women with coverage at no cost for all methods of contraception approved by the Food and Drug Administration.
Houses of worship, including churches, temples and mosques, were exempt from the requirement. But nonprofit groups like schools and hospitals affiliated with religious organisations were not.
Some of those groups objected to providing coverage for any of the approved forms of contraception. Others objected to contraception they said was tantamount to abortion, though there are substantial questions about whether that characterisation was correct as a scientific matter.
The Trump administration took the side of the religious employers, saying that requiring contraception coverage can impose a “substantial burden” on the free exercise of religion. The regulations it has promulgated made good on a campaign pledge by President Donald Trump, who has said that employers should not be “bullied by the federal government because of their religious beliefs.”
The new regulations also included an exception for employers “with sincerely held moral convictions opposed to coverage of some or all contraceptive or sterilisation methods.”
The states of Pennsylvania and New Jersey challenged the rules, saying they would have to shoulder much of the cost of providing contraceptives to women who lost coverage under the Trump administration’s rules.
Last year, a unanimous three-judge panel of the 3rd US Circuit Court of Appeals, in Philadelphia, blocked the regulations, issuing a nationwide preliminary injunction. Making exceptions to the requirement that employers provide women with coverage of contraception at no cost would have a large practical effect, Judge Patty Shwartz wrote for the panel.
That, in turn, she wrote, would disproportionately affect access to contraception for poor women.
“Cost is a significant barrier to contraceptive use and access,” she wrote. “The most effective forms of contraceptives are the most expensive. After the ACA removed cost barriers, women switched to the more effective and expensive methods of contraception.”
The coverage requirement, sometimes called the contraceptive mandate, has been the subject of much litigation, reaching the Supreme Court twice.
In 2014, in Burwell v. Hobby Lobby Stores, the court ruled that requiring family-owned corporations to pay for insurance coverage for contraception violated a federal law protecting religious liberty.
The law, the Religious Freedom Restoration Act of 1993, says that government requirements placing a substantial burden on religious practices are subject to an exceptionally demanding form of judicial scrutiny.
Justice Samuel Alito, writing for the majority, said there was a better alternative, one that the government had offered to nonprofit groups with religious objections.
That accommodation allowed the groups not to pay for coverage and to avoid fines if they informed their insurers, plan administrators or the government that they wanted an exemption. Insurance companies or the government would then pay for the coverage.
Many religious groups around the nation challenged the accommodation, saying that objecting and providing the required information would make them complicit in conduct that violated their faith.
An eight-member court considered that objection in 2016 in Zubik v. Burwell but was unable to reach a definitive ruling and instead returned the case to the lower courts, instructing them to consider whether a compromise could be reached.
