Contraceptive coverage under employer-provided healthcare plans has been an issue of fierce debate over the past decade. Earlier this month, the Supreme Court handed down a landmark ruling on the issue as it pertains to religious freedom and the Constitution.
The Mikulski Women’s Health Amendment was included in the Affordable Care Act (ACA) in 2009, introducing several notable changes to women’s healthcare. The amendment provided coverage for all Food and Drug Administration (FDA)-approved methods of contraception, among other services, and required certain employers to offer such coverage as part of their employee benefits programs.
However, the amendment also included an exemption for employers who, on the basis of religious beliefs, object to providing contraception coverage to their female employees. The exemption sparked a series of lawsuits challenging its validity, the most well-known of which was Burwell v. Hobby Lobby Stores, Inc. in 2014. That case allowed closely-held for-profit corporations to invoke the exemption if their religious beliefs were consistent with the exemption’s requirements. In its decision, the Court considered the Religious Freedom Restoration Act (RFRA), which privileges religious beliefs and expression in legal disputes.
Three years later, the Trump Administration updated Department of Health and Human Services regulations to expand the number of organizations able to claim an exemption. In addition to claims based on religious beliefs, employers could also seek an exemption based on their moral beliefs.
This expansion of the exemption’s scope was met with strong opposition from a number of states, particularly Pennsylvania. A federal district court agreed with the state’s allegations that the rules were discriminatory and violated the Constitution as well as the Administrative Procedure Act (APA), and issued an injunction to bar enforcement of the new rules. The Court of Appeals for the Third Circuit affirmed, holding that the rules indeed violated the APA and the governing agencies did not have the authority to approve exemptions on the basis of religious beliefs to the ACA.
Two cases were decided by the Supreme Court on July 8, 2020: Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Trump v. Pennsylvania. The cases asked the Court to settle a long-standing legal question: whether it is lawful for the federal government to grant exemptions to employers, on the basis of their religious beliefs, from the requirement that they provide contraception coverage in their employee benefits plans. The Court held that executive agencies had the power to provide exemptions based on both religious and moral beliefs under the ACA, and that they had done so lawfully under the APA. The following were the key considerations that influenced the Court’s opinion:
- The exemptions are authorized by the ACA under the plain language of the statute. The ACA requires that “additional preventive care and screenings” be provided to women “as provided for in comprehensive guidelines” given by the Health Resources and Services Administration (HRSA). Because that statute is silent on what the guidelines require, the Court interpreted this language to mean that governing agencies, including the HRSA, have the authority to decide which services to include in preventative care and screenings, and to determine any limitations or exemptions.
- It was appropriate for the Court to consider the “protection for religious liberty” under the RFRA, and this was an important aspect of the issue under administrative law, because there was a clear potential for conflict between contraceptive coverage and religious beliefs.
- The fact that the governing agencies named a preceding document “Interim Final Rules with Request for Comments” rather than “General Notice of Proposed Rulemaking” does not constitute a procedural defect. Although documents are typically named the former under the APA, the choice to use the latter was not a violation.
- The Court also rejected the petitioners’ argument that the governing agencies were in violation of the APA because they failed to keep a “flexible and open mind” during the notice and comment period, as open-mindedness is not a requirement under the APA.
In short, employers may refuse contraceptive coverage as part of any health insurance plans that they offer to employees. As long as employers claim a religious or moral objection to such coverage, federal agencies will likely grant their requests to be exempted from the general expectation that they provide contraceptive coverage.
The Court’s majority opinion was authored by Justice Thomas. Justice Alito authored a concurring opinion, joined by Justice Gorsuch. Justice Kagan authored a separate concurrence, joined by Justice Breyer. Lastly, Justice Ginsburg dissented, joined by Justice Sotomayor.