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At the Supreme Court this Week: Religious Objections, Birth Control, and Trump’s No Good, Very Broad Rules

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May 8, 2020
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Early this past Wednesday morning, the U.S. Supreme Court heard oral argument — by telephone! — in two cases about employers’ religious objections to insurance coverage for birth control. These cases, Trump v. Pennsylvania and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, continue the Religious Right’s crusade against reproductive health care and women’s equality in general. They also have potentially huge implications for LGBTQ equality and access to the health care we need.

The dispute is about the Affordable Care Act (ACA)’s requirement that large employers provide health insurance for their workers, including no-cost coverage for birth control. Some extreme religious conservatives have opposed this from its first moment, just as they oppose LGBT equality. In the Supreme Court, the Trump administration is siding with those demanding a “religious freedom” free pass for any employer who wants one.  

And why should all LGBTQ people care about birth control? First, as we explained in our friend-of-the-court brief, the aggressive religion arguments in these cases can as easily be used to justify:

(i) denials of things especially important to LGBT people (such as gender confirmation care, assisted reproduction, HIV medication, and same-sex spousal benefits);

(ii) denials of medical care important to everyone but banned by some religions (like vaccines and blood transfusions); and

(iii) denials of any services, goods or equal treatment in the public marketplace — based on others’ personal beliefs.

The last point is core to Lambda Legal’s mission. Anti-LGBT discrimination is a persistent problem, in health care and other settings. And religion is often cited as the motive.

Second, don’t forget that many lesbian and bisexual cisgender women, and some transgender men, need contraception for birth control and other health reasons (such as endometriosis or to reduce cancer risks). Third, LGBT rights, women’s equality, and reproductive freedom share the same legal foundations and face the same legal and political threats. Fourth, and much on our minds as we wait for the Supreme Court’s rulings in the three huge anti-LGBT workplace discrimination cases, discrimination based on gender norms and stereotypes harms LGBT people and cisgender women in similar ways.

So why are these birth control cases in the Supreme Court now?

The Women’s Health Amendment is part of the ACA, and it aims to increase gender equality in health care and employment. Congress directed the Department of Health & Human Services (HHS) to write appropriate rules. The Obama administration did so, and included some special opt-outs for religious objectors such as houses of worship. But, the Obama rules required large employers doing secular work — both for-profit companies and religiously affiliated nonprofits — to provide the insurance.

You might remember the Hobby Lobby litigation, in which the owners of the chain of stores attacked this requirement, citing their beliefs. We and many others sounded alarms because their “religious freedom” arguments were so broad and threatening. Unfortunately, the Supreme Court embraced the owners’ radical arguments, though only after concluding that the workers could get their insurance a different way. And if the employees got insurance from a different source, Justice Alito reasoned, the impact on them would be “precisely zero.”

But the extreme religious conservatives weren’t satisfied.

Though they had won an opt-out for businesses, they next aimed their forces at the “different source” option offered to employers who object. That option had been designed for religiously affiliated agencies and universities. It allowed them to object by using a simple form.

But to the religious objectors, filling out the form was too much of a burden on their religious freedom. So they launched a flotilla of new cases challenging that process, charging it’s a problem for them that giving notice of their objection facilitates their employees to get insurance another way. We explained that view of religious liberty is terribly inflated because it allows religious believers to thwart others’ rights. Zubik v. Burwell brought the issue to the Supreme Court, which largely punted, telling both sides to work it out themselves.

Enter the Trump administration.

Their views about public health and women’s rights are the opposite of the prior administration, and they arrived with big plans to advance specific religious interests through federal policy. They issued new regulations authorizing employers — religious and secular alike — to refuse to cover birth control, and to refuse even to give notice of their refusals. These Trump rules allowed refusals not just on religious grounds, but any sort of “moral” belief. We and thousands of others opposed these outrageous changes, to no avail.

So Pennsylvania and New Jersey sued. They charged the administration lacked authority to grant essentially limitless permission to all sorts of employers to ignore the ACA. The lower courts agreed that the new rules are obviously invalid. And the Supreme Court waded in, again.

Oh, and the “Little Sisters” order of nuns, who operate social service agencies as an equal opportunity employer in thirty countries globally, asked to join the litigation. Oddly, they were allowed in, though their benefit programs follow different rules and the birth control rule can’t be enforced against them.

And so, argument day arrived.

While every Supreme Court proceeding has drama, there’s extra excitement now because the public can listen live — still a novelty — since COVID-19 has closed the courthouse doors. Chief Justice John Roberts acts as conductor, inviting each justice by seniority to ask questions.

Solicitor General Noel Francisco argued for the US Department of Justice in defense of the Trump administration’s rules. Early in, Justice Ginsburg, calling from her temporary hospital bed, voiced what became her refrain. She said it seems the Trump rule “tosses to the winds” Congress’s command that women are to have this insurance. Instead, she stressed, the Trump rule gives “all for one side and nothing for the other,” leaving many women to fend for themselves. “We have had a tradition of tolerance,” she stressed, “and respect for divergent views.” And, contrary to the government’s position, she does not read religious freedom under federal law as authorizing such harm to others.

When her turn came, Justice Sotomayor picked up that theme, eliciting agreement that the new rule probably ups the number of women denied coverage from 30,000 to between 75,000 and 125,000. To Mr. Francisco’s reply that women should just seek their contraception other ways, she asked, how can the government justify that when there really is no substantial burden on the employers’ exercise of religion?

Justice Sotomayor stayed focused on real-life situations. She later pressed Paul Clement, counsel for the Little Sisters, whether he would argue for massive religious exemptions if coverage for a COVID-19 vaccine were at stake. Clement acknowledged that the religious claim might have to yield.

When it was his turn, Michael Fischer, the lawyer for Pennsylvania and New Jersey, hammered on his main point: the Trump administration had no authority to toss out the reasonably balanced Obama rules in favor of grossly overbroad new rules that betray Congress’s promise to women of equal preventive care insurance. For example, there is no basis for exempting publicly traded companies with no religious beliefs plausibly in common, or for exemptions based on “moral beliefs” that can be anything at all. He stressed, the new rules amount to an unlawful grab of vast authority by the administration away from Congress and the courts.

That point might seem straightforward to many of us. But Mr. Fischer faced stern questioning from a number of the justices. Justice Alito, as one example, is among the Court’s vocal supporters of expanded religious rights. He grilled Mr. Fischer about why the lower court wasn’t wrong when it didn’t use his Hobby Lobby analysis. That analysis is deeply problematic because it seems to just accept a believer’s view that being forced to be “complicit” in another person’s supposedly sinful conduct imposes a heavy burden on the believer’s own religious practice. That’s an argument made in cases like Masterpiece Cakeshop — that providing a cake or flowers for a couple’s “sinful” wedding makes the baker or florist “complicit” in the couple’s sin.

Mr. Fischer forcefully defended the lower court. He stressed that earlier, still-valid Supreme Court precedents make clear that it’s not about whether each person feels personally burdened by having to follow the law. Instead, it’s a legal question for courts whether a particular law or other limit on one’s exercise of religion is “burdensome” enough to justify a special exemption.

Throughout the arguments, the justices took turns at least acknowledging the interests on both sides. Chief Justice Roberts, and Justices Breyer and Kagan, in particular, returned repeatedly, seemingly in frustration, to whether the parties truly cannot resolve the dispute. At one point, Justice Breyer reminded Mr. Clement that the religion clauses in our Constitution — the Free Exercise and Establishment clauses — are designed to facilitate harmony between religious and secular interests. Actually, they’re designed to do more than that. They’re designed to protect each of us from what others might want to do to us in the name of religion.

But Justice Breyer also mused whether the parties are asking the wrong questions. Should the Trump rule be tested not just for bad procedure, but also for bad substance, under the Administrative Procedure Act? In other words, as Mr. Fischer had been saying, is the Trump rule simply so unreasonable — so contrary to what Congress has promised to workers — that it’s invalid. And, if so, should the case be sent back to the lower courts for more wrangling along these lines?

A specter now looms.

For all of us stuck in this religious-exemptions Groundhog’s Day, what if enough justices are sufficiently exasperated, that they punt again as they did in Zubik, rather than simply confirm the bedrock American principle — that freedom to act on religious beliefs ends when harm to others would begin. We have needed the Court to reinforce this principle in these endless birth control cases, and all the courts to do so in our cases about anti-LGBT discrimination in wedding services, foster care and adoption, and access to health care.

As we wait for these rulings, it seems the burden still rests on all of us to expand the national conversation, which shapes the context in which the Court decides, about what religious liberty is supposed to be, and what it isn’t.