Roberts Questions Trump’s Curbs to Obamacare Birth-Control Rule

(Bloomberg) -- U.S. Chief Justice John Roberts suggested the Trump administration had gone too far in giving employers and universities a broad religious opt-out from the Obamacare requirement that they offer free birth-control coverage through their health plans.

With the Supreme Court hearing arguments by phone for a third day -- and with Justice Ruth Bader Ginsburg taking part from a Baltimore hospital -- the justices on Wednesday re-entered a fractious debate over the contraceptive requirement.

Roberts, who could hold the pivotal vote, said the Trump exemption might “sweep too broadly,” going beyond what is needed to accommodate legitimate religious objections. Roberts also questioned arguments made by two states challenging the exemption, but he directed his toughest questions at two lawyers defending the administration’s approach.

The Trump administration is seeking to expand a narrower religious exemption offered by President Barack Obama’s administration, a move that critics say could leave large numbers of women without ready access to birth control.

Ginsburg, taking part even while being treated for a gallbladder condition in Johns Hopkins Hospital, told U.S. Solicitor General Noel Francisco the administration “just tossed entirely to the wind what Congress thought was essential, that is that women be provided these services with no hassle, no cost to them.”

She said the administration was imposing the employer’s faith “onto the employees who do not share those religious beliefs.”

Catholic Nuns

Francisco responded that the Affordable Care Act itself didn’t require contraceptive coverage but instead let federal agencies decide whether to make it mandatory.

“We think that that also included the discretion to require that most employers provide it but not the small number who have sincere conscientious objections,” Francisco said. He later said 75,000 to 125,000 women would be affected by the exemption.

The administration says the exemption is required, or at least permitted, under the U.S. Religious Freedom Restoration Act. The administration is arguing alongside the Little Sisters of the Poor, an order of Catholic nuns that says it is trying to avoid having its employee health-care plan “hijacked” to provide birth-control coverage.

But Roberts said the Trump exemption “reaches far beyond” the Little Sisters’ concerns. “In other words, not everybody who seeks the protection from coverage has those same objections.”

The Little Sisters are taking part even though a separate court ruling means the contraceptive mandate can’t be enforced against the group regardless what the justices decide in the case they are considering.

Filling Out a Form

Obama had offered objecting employers two options: They could shift responsibility onto their insurer by providing it with a specified form, or they could notify the Department of Health and Human Services of their objection and provide contact information for their insurer. The Obama approach fully exempted churches, which aren’t directly affected by the latest Supreme Court fight.

Roberts said the problem was that “neither side” wanted the Obama administration’s approach to work.

The Trump administration issued its rule in November 2018. The new policy expands the types of employers who can claim religious exemptions to include publicly traded companies for the first time, and also applies it to universities in their student health plans. It also lets some employers claim a moral exemption.

Pennsylvania and New Jersey are challenging the Trump policy, saying RFRA doesn’t let the administration override Congress’s goals in the Affordable Care Act. The states also say the rules are tainted because the government didn’t give the public a chance to comment as required under federal law. A federal appeals court backed the states.

Justice Samuel Alito asked whether the appeals court decision wasn’t “squarely inconsistent” with a 2014 Supreme Court ruling that let Hobby Lobby Stores Inc. and other closely held companies refuse to offer birth control coverage to their employees.

Hobby Lobby

“Hobby Lobby held that if a person sincerely believes that it is immoral to perform an act that has the effect of enabling another person to commit an immoral act, a federal court does not have the right to say that this person is wrong on the question of moral complicity,” Alito said. “That’s precisely the situation here.”

Pennsylvania Deputy Attorney General Michael Fischer said that ruling didn’t preclude the federal government from requiring someone simply to fill out a form.

“Courts still have a duty to inquire as to what the law actually requires of the objector,” Fischer said.

The argument took place on the first deadline date for briefs in a more sweeping Obamacare case the court will hear after its new term starts in October. A group of Republican-led states are seeking to overturn the entire health-care law, largely with the Trump administration’s support.

The cases are Trump v. Pennsylvania, 19-454, and Little Sisters of the Poor v. Pennsylvania, 19-431.

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