Justice Scalia’s death delayed a reckoning. Now the fight over contraception is back.
As soon as Friday, the Supreme Court could announce that it will hear Trump v. Pennsylvania and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, two consolidated cases examining the Trump administration’s rules allowing virtually any employer to deny birth control coverage to its employees.
The cases reignite a legal conflict over the rights of employers who object to contraception on religious grounds. This conflict raged throughout much of the Obama administration, then briefly simmered down after Justice Antonin Scalia’s death temporarily stripped conservatives of the Supreme Court majority they needed to expand the rights of religious employers.
The core question in the Pennsylvania cases, however, is not whether the Constitution gives such religious objectors a right to deny contraceptive coverage to their employees. Rather, it’s whether the Trump administration acted properly when it wrote a sweeping exemption into regulations requiring employers to include birth control coverage in employee health plans.
The Trump administration’s rules permit many employers to ignore the requirement to provide birth control coverage to their employees if the employer expresses either a religious or a “moral” objection to contraception. A federal appeals court struck down these rules.
It is likely, though not certain, that the Court will agree to hear the Pennsylvania cases. But even if it doesn’t, a Supreme Court showdown on birth control is all but inevitable. Not long after Scalia’s death, the Court’s three most conservative members complained that they lacked the votes to hear a case brought by pharmacy owners who object to birth control on religious grounds.
With two Trump judges now on the Supreme Court, the Court’s right flank almost certainly has the votes it needs not just to take up such a case — but to win.
How we got here
Until fairly recently, the general rule in “religious liberty” cases was that people of faith may sometimes seek exemptions from laws they object to on religious grounds, but they could not claim an exemption that would undercut the rights of a third party. This was especially true in the business context. As the Supreme Court held in United States v. Lee (1982), “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
That changed with Burwell v. Hobby Lobby (2014), which held that the federal Religious Freedom Restoration Act (RFRA) allows many employers that object to birth control to offer health plans that do not include contraceptive coverage.
Yet while Hobby Lobby was a doctrinal earthquake — erasing the old rule that religious objectors may not undercut the rights of people who do not share their beliefs — the opinion itself was fairly limited in scope. Much of the Court’s reasoning rested on the fact that, rather than requiring all employers to provide birth control coverage directly to their employees, the Obama administration could have achieved the same goal more indirectly.
Under this indirect approach, an employer could “self-certify that it opposes providing coverage for particular contraceptive services.” After this happens, the government could then make a separate arrangement with the company that runs that employer’s health plan to ensure the employer’s workers still receive contraceptive coverage.
Yet after the Obama administration took up the Supreme Court on its suggestion that it use this more indirect method of providing birth control coverage, some religious employers objected to this indirect process as well. That kicked off a second round of litigation that ultimately fizzled in the Supreme Court’s decision in Zubik v. Burwell (2016).
Short one justice, the Court punted Zubik back to the lower courts — most likely because the justices were divided 4-4 on who should prevail.
The Trump administration gave the religious right all it asked the courts for and more
President Trump’s election, and the appointment of archconservative Justice Neil Gorsuch to the Supreme Court’s vacant seat, seemed to ensure that conservatives would prevail as soon as a case like Zubik reached the justices again.
Rather than wait for such a decision, however, the Trump administration decided to act on its own to give religious objectors a broad exemption from the requirement to provide birth control coverage. In May 2017, Trump issued an executive order instructing his administration to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.”
A few months later, the administration pushed out new rules granting a broad exemption to employers with moral or religious objections to birth control. Among other things, these rules exempt both nonprofit employers and for-profit employers that are not publicly traded, if those employers object “based on its sincerely held moral convictions” to contraception.
Last July, however, a federal appeals court struck down the Trump administration’s rules. The court concluded that the administration did not follow the appropriate procedures when it promulgated the new rules, and that federal law does not authorize the broad exemptions described by the Trump administration’s rule.
As a general rule, proposed regulations must undergo a process known as “notice and comment,” where the text of the proposed rule is released to the public so that anyone with an interest in that regulation may comment on it. The Trump administration bypassed notice and comment, although it did put the rule through this process retroactively after it was already in effect.
According to the lower court, that’s not allowed. Among other things, the administration claimed it could bypass notice and comment because of “the urgent need to alleviate harm to those with religious objections to the current regulations.” But, according to Judge Patty Shwartz, who wrote the lower court opinion, that claim would allow too much.
“All regulations are directed toward reducing harm in some manner,” she explained in her opinion. So if harm reduction were sufficient reason to bypass ordinary procedures, those procedures would largely cease to exist.
More significantly, Shwartz wrote that no federal statute authorizes the Trump administration’s rules. Though many federal laws permit agencies to issue binding regulations, agencies cannot act on their own — they can only regulate when Congress has given them the power to do so.
Judge Shwartz’s opinion doesn’t rule out the possibility that RFRA might let the administration exempt some religious objectors from some federal rules. But the Religious Freedom Restoration Act is the Religious Freedom Restoration Act. It’s not the Moral Freedom Restoration Act. As Shwartz points out in a footnote, the Trump administration didn’t even attempt to argue that “RFRA authorizes or requires the Moral Exemption.”
So what happens now?
Should the Supreme Court ultimately agree with Shwartz that the administration needed to conduct notice and comment before this rule takes effect, that would temporarily strike down the rule. As a practical matter, however, the administration could eventually revive it by jumping through the appropriate procedural hoops.
Meanwhile, it is probably inevitable that, one way or another, the Supreme Court will determine that religious objectors should enjoy broad exemptions from the requirement to provide birth control coverage. There were almost certainly four votes for this outcome when the Court heard Zubik, and Gorsuch, who occupies the seat that was vacant in 2016, is a staunch conservative in religion cases.
But the question of whether the administration can create a freestanding “moral” exemption to a federal regulation is novel. And, as Shwartz notes, it’s hard to find statutory support for such an exemption. It’s possible this “moral” exemption will be a bridge too far even for the current Supreme Court.
Author: Ian Millhiser
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