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Lambda Legal: Freedom of Religion is Not Freedom to Harm

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“Today’s ruling … permits essentially all employers – both religious and secular – to effectively block their employees from securing that essential health benefit [birth control] through another route. We call on Congress to fix this travesty.”
July 8, 2020

(Washington, DC, July 8, 2020) – Today, the U.S. Supreme Court ruled 7-2 to approve the Trump administration’s expansion of large employers’ ability to largely ignore the Patient Protection and Affordable Care Act (ACA) birth-control insurance rule, which Congress enacted to increase equal treatment of women workers. The Obama administration’s rules for implementing this requirement allowed large employers covered by the ACA to object on religious grounds to providing this insurance if they give notice of their objection so their employees can receive that insurance through a separate process.

The Trump administration changed those rules, allowing essentially any employer to deny the insurance based on religious or personal moral objections of any sort and without giving notice. Pennsylvania and New Jersey sued to protect the workers entitled to this insurance, arguing that the Trump administration rules are inconsistent with the ACA and were adopted through an improper process. A self-insured religious order that provides social services entered the litigation to help defend the Trump administration rule.

The ruling came in the two cases, Trump v. Pennsylvania and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, which had been combined in the Supreme Court. Lambda Legal Senior Counsel and Law and Policy Director Jennifer C. Pizer issued the following statement: 

“It is hard to overstate the harm the Supreme Court has visited today both upon women and other vulnerable populations, and upon the rule of law and fundamental fairness. It has endorsed the Trump administration’s high-handed flouting of both the will of Congress and our rules of administrative procedure. But religious freedom has never been a license to deny the rights of others and give the back of one’s hand to the rule-making process. In effect, the Court today has given the administration a green light to ignore Congress and the rights of workers to receive promised benefits, all in the name of religious freedom. That was not and cannot be what the framers intended.

”Today’s ruling goes beyond simply allowing certain employers to cite religion- or personal morality-based reasons for denying their employees birth control coverage in the employee health care plans required by the ACA. Instead, it permits essentially all employers – both religious and secular – to effectively block their employees from securing that essential health benefit through another route. We call upon Congress to fix this travesty, which today’s decision acknowledges Congress can do.”

As Justice Ginsburg noted in her powerful dissent, as joined by Justice Sotomayor:

In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs. Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.

Destructive of the Women’s Health Amendment, this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets. … The Constitution’s Free Exercise Clause, all agree, does not call for that imbalanced result. Nor does the Religious Freedom Restoration Act … condone harm to third parties occasioned by entire disregard of their needs. I therefore dissent from the Court’s judgment, under which … between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services.

Pizer explained further, “While the implications for women’s health of today’s ruling are dire, so too are the implications for LGBTQ people, everyone living with HIV, and many more. Even before our nation came to be gripped by the worst public health pandemic in a century, LGBTQ people and their families endured widespread abuse and discrimination in the health care context, as in other contexts, often with religious motives, as many studies and surveys have documented, including Lambda Legal’s own “When Health Care Isn’t Caring” report.

“Today, with responses to the COVID-19 crisis polarized politically, together with the growing number of major medical centers with explicit religious affiliations due to frequent hospital mergers, the potential of today’s catering to religious interests to harm LGBTQ people and many others is alarming. In this country, freedom of religion has never meant allowing religious objectors to deny the rights or freedoms of others.  Again, we call on Congress immediately to override what the Trump administration has done, which today’s Court majority acknowledges Congress can do.”

Lambda Legal’s attorneys in Trump v. Pennsylvania and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania are Jennifer Pizer, Camilla Taylor, Jamie Gliksberg and Omar Gonzalez-Pagan. 

Read our amicus brief in the case here: https://www.lambdalegal.org/in-court/legal-docs/little_us_20200506_amicus-brief

Read Lambda Legal’s report, “When Health Care Isn’t Caring,” here: https://www.lambdalegal.org/sites/default/files/publications/downloads/whcic-report_when-health-care-isnt-caring_1.pdf

Read about Lambda Legal’s work fighting religious exemptions here: https://www.lambdalegal.org/blog/topic/religious-exemptions

Read about Lambda Legal’s work in the prior religious challenge to this health benefit, Zubik v. Burwell, here: https://www.lambdalegal.org/in-court/cases/zubik-v-burwell

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Contact Info

Tom Warnke; (o): 213-382-7600 ext. 247; (c): 213-841-4503; Email twarnke@lambdalegal.org

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