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Pa.’s birth-control war returns to a divided U.S. Supreme Court

Wednesday’s court session underscored just how divided the justices have become since they last examined the issue and the extraordinary nature of how pandemic-era proceedings have played out over the past week.

The U.S. Supreme Court building in Washington, D.C.
The U.S. Supreme Court building in Washington, D.C.Read moreMark Tenally / AP

For the third time in six years, a divided U.S. Supreme Court took up the question Wednesday of whether employers with religious or moral objections to contraception can be compelled under the 2010 Affordable Care Act to provide no-cost access to birth control for their workers.

Also for the third time, the case at issue arose in Pennsylvania.

But the proceedings that played out Wednesday only underscored how much has changed since the justices delivered their first ruling on the issue in 2014.

The White House, under a different administration, has switched sides in the fight. The court’s conservative majority has become more firmly entrenched. And the global coronavirus pandemic has disrupted centuries of high court tradition, forcing a first: oral arguments by phone that were livestreamed over the internet.

Justice Ruth Bader Ginsburg, recovering from a gallstone infection, participated from a hospital bed in Maryland. Yet she still opened with a spirited attack on the Trump administration’s position.

“You have just tossed entirely to the wind what Congress thought was essential: that women be provided these services with no hassle, no cost to them,” she said. “Instead, you’re shifting the [cost of] the employer’s religious beliefs … onto employees who may not share [them]. ... The women end up getting nothing.”

LISTEN: Justice Ruth Bader Ginsburg responds skeptically to the Trump administration’s argument:

The case before the court this time stems from a lawsuit brought by the attorneys general of Pennsylvania and New Jersey, who objected to President Donald Trump’s effort in 2017 to expand existing exemptions that allow churches and some closely held private businesses whose owners have religious objections to opt out of paying for birth control for their workers.

» READ MORE: Philly judge blocks Trump efforts to roll back birth control mandate

Under the new proposals, virtually all employers ranging from small businesses to Fortune 500 companies could cut off coverage as well, citing what Pennsylvania Deputy Attorney General Michael Fischer described as “amorphous, vaguely defined moral beliefs.”

A federal judge in Philadelphia blocked the new rules the day they were set to go into effect, finding that as many as 127,000 women could lose contraception coverage, pushing the financial burden for paying for it onto the states.

LISTEN: Pennsylvania Deputy Attorney General Mike Fischer lays out the state’s view of the case:

Nearly 63 million women receive free birth control through employer plans, according to the Kaiser Family Foundation. On average, women with private insurance save $255 annually on birth control costs.

The Supreme Court’s five-member conservative majority — buoyed by the addition of Justices Brett Kavanaugh and Neil Gorsuch since the last time the contraception issue came before the court — appeared divided Wednesday.

Chief Justice John G. Roberts Jr. joined more liberal colleagues in questioning whether the Trump administration’s action had been “too broad.” Meanwhile, conservative stalwart Clarence Thomas seemed to express doubt over the appropriateness of nationwide court injunctions, like the one issued by U.S. District Judge Wendy Beetlestone in Philadelphia to block the Trump administration’s regulations last year.

Acknowledging there were “strong interests on both sides,” Kavanaugh questioned whether the court should even get involved. “It seems to me that the judicial role is not to put limits on the agency’s discretion that Congress had not put there,” he said.

LISTEN: Justice Sonia Sotomayor asks whether vaccine skeptics could claim similar moral objections:

But justices on both sides of their ideological split appeared frustrated that they were being asked yet again to rule on this narrow but hotly contested provision of President Barack Obama’s signature health-care law. Surely, said Justice Stephen G. Breyer, the two sides should be able to “monkey with the [regulations] in some way until everyone agrees.”

The court’s 2014 ruling — in a case brought by a Lancaster County cabinetmaker alongside crafting chain Hobby Lobby — expanded exemptions to the ACA’s contraception mandate to include businesses owned by a small group of owners who object to contraception use on religious grounds.

The Obama administration countered with compromise regulations that required those companies to still provide health-care plans offering contraception but shifted the burden of paying for it from the employers to their insurers.

That prompted another challenge out of Pennsylvania in 2015 led by religious nonprofits associated with the Roman Catholic Diocese of Pittsburgh. They argued the new rules might let them off the hook financially but still required them to tacitly support the use of medicines that violated their beliefs. The Supreme Court deadlocked in a 4-4 split on that case and punted it back to the lower courts without a definitive ruling.

This time, though, White House lawyers hoped for a decision with more resounding impact. They argued that the new rules amount to a reasonable exercise of their authority to protect religious freedom.

“This was the very same discretion that was to adopt the church objections,” Solicitor General Noel Francisco said.

He was joined in his fight Wednesday by the Little Sisters of the Poor, an order of Roman Catholic nuns who have intervened in the case and argue that the current status quo makes them complicit in medical treatments that violate their beliefs.

“When people are faced with a government obligation that their religion absolutely forbids them to comply with, that’s something that the government should try to avoid at all costs,” said their attorney, Paul Clement.

LISTEN: Paul Clement lays out the religious objections of the Little Sisters of the Poor:

But Pennsylvania and New Jersey say the rule changes could saddle those states with picking up the birth control tab, not to mention the cost of thousands of unplanned pregnancies that could result.

What’s more, Fischer, the Pennsylvania deputy attorney general, argued Wednesday the Trump administration did not follow a legally required process giving interested parties a chance to comment before implementing the rule change.

Fischer made his case over the phone from the attorney general’s satellite office in Philadelphia, and it largely went off without any of the technical hitches he and other staff had practiced to avoid. (The same couldn’t be said for the second case of the day, when what sounded like a toilet flush interrupted a lawyer in mid-argument.)

But despite the unusual circumstances, Attorney General Josh Shapiro said he hoped the argument came across.

“We obviously find ourselves in unprecedented times facing unprecedented challenges,” he said. “But if anything, this pandemic has made one thing clear: People need more access to health care. Not less.”

The court is expected to issue its ruling later this year.