Supreme Court struggles to find balance between religious freedom, reproductive rights
WASHINGTON – The Trump administration's effort to exempt employers with religious or moral objections from offering insurance coverage for contraceptives teetered Wednesday before a closely divided Supreme Court.
With Associate Justice Ruth Bader Ginsburg denouncing the regulation from her hospital room due to illness, Chief Justice John Roberts emerged as the potential swing vote in a battle that has stretched for nearly a decade.
Under the Affordable Care Act, most employers must provide cost-free coverage for contraceptives. Churches and other houses of worship were exempted from the start; religious charities, hospitals and universities can direct their insurers to provide the coverage directly. And in 2014, the Supreme Court ruled 5-4 that privately held corporations with religious objections also could opt out.
But despite the high court's best efforts, a simmering dispute involving religious nonprofits such as the Little Sisters of the Poor returned Wednesday, four years after the justices urged both sides to settle their differences out of court.
The groups want no part of covering birth control, even if it means just allowing their insurers to do so. The Trump administration took their side, going so far as to exempt groups with moral objections as well. That effort has been blocked by lower courts.
Roberts, who has emerged as the court's swing vote since Associate Justice Anthony Kennedy's retirement in 2018, asked U.S. Solicitor General Noel Francisco if the new exemption was too broad.
“The problem is that neither side in this debate wants the accommodation to work," a frustrated Roberts told Paul Clement, the attorney for Little Sisters of the Poor. "Is it really the case that there is no way to resolve those differences?"
During the third consecutive day of telephonic oral arguments prompted by the coronavirus pandemic, Ginsburg took the offensive against the Trump administration's regulation, even while recovering from a benign gallbladder condition at Johns Hopkins Hospital in Baltimore.
“You have just tossed entirely to the wind what Congress thought was essential,” Ginsburg told Francisco, referring to cost-free coverage for contraceptives. Despite assertions of religious freedom, she said, the solution should not be to "give everything to one side and nothing to the other side."
"The women end up getting nothing," she continued. "They are required to do just what Congress didn’t want.”
More: Justice Ruth Bader Ginsburg joins oral argument by telephone from hospital
Associate Justice Sonia Sotomayor also criticized the new regulation, noting the administration estimates 75,000 to 125,000 women would lose employer coverage for contraceptives.
But Francisco said those challenging the exemption, led by Pennsylvania and New Jersey, have not identified any women who would lose all access to contraceptives, such as through government programs.
As he has in other such cases, Associate Justice Samuel Alito took up the cause of religious believers. He appeared to have support from the court's other conservative justices.
Associate Justice Brett Kavanaugh, the most recent addition to the high court, summed up the dispute near the end of the oral argument, which went 40 minutes beyond the usual hour.
“There are very strong interests on both sides here, which is what makes the case difficult, obviously," Kavanaugh said, noting Congress, federal agencies and the courts all have weighed in. "There's religious liberty for the Little Sisters of the Poor and others. There's the interest in ensuring women's access to health care and preventive services, which is also a critical interest. So the question becomes: Who decides?"
This article originally appeared on USA TODAY: Supreme Court divided over religious freedom, contraceptives coverage
