Punting a Problem Rarely Resolves One
The Supreme Court’s Misstep on Birth Control
Photo by Thought Catalog on Unsplash
As we wait for the Supreme Court's opinion on the Little Sisters of the Poor v. Pennsylvania decision, it is worth revisiting the claims and history in the case. This particular case was combined with Trump v. Pennsylvania case as they both centered around similar issues. Unfortunately, this caused quite a bit of confusion during oral arguments as I will discuss later. One of the main issues, in this case, is whether the government followed the Administrative Procedures Act (APA) when changing the regulations regarding who could claim a religious exemption. In 2017, the Department of Health and Human Services wrote new regulations greatly broadening the entities that were eligible to claim an exemption to include those who have a “moral” objection. There was no notice of the changes nor public comment period. The states of Pennsylvania and New Jersey sued maintaining that the rules violate the Constitution, federal anti-discrimination law, and the Administrative Procedure Act (APA). The lower courts found for the states and the rules were halted. The Justice Department, the Administration, and the Little Sisters of the Poor sued to have them reinstated leading to the case this year.
In order to understand this case though, we must go back to the Zubik v. Burwell case in 2017. That case raised the issue of the Affordable Care Act's (ACA) mandate that employers provide health insurance that fully covers birth control. Under the ACA rules, churches and other houses of worship were exempted from the contraceptive coverage mandate. Religious nonprofits could request an accommodation in which their employees would receive contraceptive coverage, but they would not have to pay for it. The Little Sisters of the Poor, as a Catholic nonprofit, had to file an accommodation notice so they would not have to provide birth control coverage. However, the Little Sisters claimed that they should not need to file an accommodation notice and that the burden it put on them was a violation of the Religious Freedom Restoration Act (RFRA). The Supreme Court remanded the case back to the lower courts requesting that the government and the complainants come up with some sort of compromise where RFRA was upheld yet the women would still get contraceptive coverage free of charge. That did not happen.
The arguments took place in these two cases by phone due to the pandemic. They were difficult to follow partly because there did not seem to be one question to answer. While the question of whether the rules change was legal seems straightforward, the court was dragged back into some of the unanswered issues from the Zubik case. Mainly, the government and religious institutions had never been able to come up with the compromise that the court expected. There was a lot of discussion of the same issues that had little to do with the HHS rules changes.
One of the statistics that stood out to me in the arguments was that from 70K-126K women will be affected by the exemption. That is a significant number of women who would no longer have access to birth control. The Court has a difficult task here as they have to balance the religious rights of the Little Sisters of the Poor against the ability of their female employees access to free birth control. Since the Supreme Court was not able to get the lower courts to come up with a compromise in Zubik, perhaps they can instruct the government to cover the costs for these women. In watching the SCOTUSblog discussion between Eric Citron of Goldstein & Russell and Nelson Tebbe of Cornell Law School after the arguments, I was struck by how they were not able to think of a way to resolve the problem legally either.
The main argument by the states was that the inclusion of the moral exemption was “arbitrary and capricious”. Chief Justice Roberts questioned whether it was an “overly broad take.” Moral objections cannot be protected under RFRA. Additionally, there was no real definition of what a moral objection is exactly. Eric Citron said on SCOTUSBlog that “If an exemption of this breadth is actually justified, that should be resolved in ordinary APA arbitrary and capricious litigation.”
It is clear that the court must find an answer to the issue of balancing religious freedom when those beliefs hurt a significant number of people who do not hold their beliefs. The Establishment Clause does allow religious beliefs to be superseded for the public good, as in the case of vaccinations, but it is rarely invoked. While this may not be the case where that should happen, someone needs to figure out how to get these women contraception that they are entitled to by law free of charge.