On January 17, 2020, the U.S. Supreme Court granted the writ of certiorari to hear two cases involving employers’ obligation to provide health insurance coverage for contraceptives. Employers are currently required to provide employees with health insurance including women’s preventive care under the Affordable Care Act (“ACA”). In 2011, the U.S. Department of Health and Human Services (“DHHS’) announced a rule to allow employers to use religious beliefs as an exception to providing female employees with insurance that includes women’s preventive care. Later, in 2017, DHHS announced an interim rule which expanded upon its original exemption to include employers who had not only religious conflicts but also moral or ethical objections.
The Supreme Court consolidated two cases relating to the DHHS’ rule. The first case began before the new rule went into effect, when the Attorney General of Pennsylvania filed for a preliminary injunction to stop the rules enforcement. The District Court for the Eastern District of Pennsylvania entered a nationwide injunction against the rule’s enforcement; the Third Circuit Court upheld the District Court’s decision. The second case involves a right of intervener filed by the Little Sisters of the Poor, a mission based organization led by catholic nuns who intervened to object to the national injunction on the DHS’ rule.
In support of the DHHS rule, religious organization and employers contend that under the Religious Freedom Restoration Act (“RFRA”) they are entitled to exercise their religious belief. Since the use of contraception is not supported by those religious beliefs, religious organizations claim an exemption from the ACA requirement. However, Pennsylvania argued that the DHHS did not follow the rule making requirements under the Administrative Procedures Act, and the rule goes beyond the legislative intent of the ACA. Further, RFRA does not create an exception for the ACA requirement because the ACA’s requirement does not put a substantial burden on religious exercise. Finally, Pennsylvania argues that the interim rule would create irreparable harm to state citizens by limiting access to affordable health care.
This is not the first time the Supreme Court has listened to an argument regarding the religious exception to the ACA. In 2014, the court decided in Burwell v. Hobby Lobby Stores by a 5-4 decision that under RFRA, DHS could expand religious exceptions to for-profit companies since those rights were already extended to non-profit companies. In her dissent, Justice Ginsburg, disagreed with the majority’s view because for-profit companies are not allowed to declare a religion. Additionally, judicial precedent states that a religious belief cannot “impinge on the rights of third parties”.
In the writ for certiorari in Little Sisters of the Poor Home for the Aged v. Burwell, the petitioners asked the Court to answer whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage. Meanwhile, in Trump v. Pennsylvania, the State of Pennsylvania proposed the following questions to the Court: First, whether the agencies had statutory authority under the ACA and the RFRA, to expand the conscience exemption to the contraceptive-coverage mandate; and second, whether the agencies’ decision to forgo notice and opportunity for public comment before issuing the interim final rules rendered the final rules—which were issued after notice and comment—invalid under the Administrative Procedure Act, 5 U.S.C. 551 et seq., 701 et seq; and third, whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.
The Supreme Court is poised to deliver its opinion on this high-profile issue before the end of the current session. The court’s decision might finally clarify the obligations employers have to provide women’s preventative healthcare to female employees and if there are exceptions to that obligation under RFRA, the ACA or the U.S. Constitution.