Bloomberg Law
Jan. 23, 2020, 8:06 PM

SCOTUS Poised to End Fight Over Obamacare Birth Control Rule

Mary Anne Pazanowski
Mary Anne Pazanowski
Legal Reporter

The U.S. Supreme Court will once again weigh in on a long-standing feud over Obamacare’s requirement that employer health plans pay for employees’ birth control, as it will review two Third Circuit decisions affirming an order blocking broad exemptions for employers with religious or moral objections.

The court’s decision on whether to uphold or reverse a nationwide preliminary injunction against enforcement of the Trump administration’s exemption rules will be consequential, attorneys well-versed in Affordable Care Act issues told Bloomberg Law. If upheld, the injunction ensures thousands of women retain access to cost-free contraception, Brigitte Amiri, Deputy Director of the ACLU’s Reproductive Freedom Project, told Bloomberg Law Wednesday.

But, if the court decides that the Religious Freedom Restoration Act required the Departments of Health and Human Services, Labor, and Treasury to issue the broad religious exemption to Obamacare’s so-called contraceptive mandate, it will end debate over one the law’s most contentious requirements.

Such a decision, moreover, “could open the door to federal agencies issuing many more RFRA/religious exemptions to otherwise neutral laws of general applicability,” Katie Keith said Wednesday. Keith teaches courses on the ACA at the Georgetown University Law Center.

“If they go this direction, it could be a much more significant case with repercussions beyond the contraceptive mandate,” Keith said.

Do-Over for Mandate

The high court could avoid the religious objection issue altogether and decide the cases on narrower administrative law or procedural grounds, Joshua Blackman, who teaches Constitutional Law at South Texas College of Law, told Bloomberg Law Jan. 21. Blackman has written several briefs, articles, and books critical of Obamacare.

For example, the court could find Pennsylvania and New Jersey, which brought one of the cases, lacked standing to challenge the exemptions because they didn’t demonstrate they would be injured if the rules are enforced, Blackman said. Or the court could focus more narrowly on administrative law arguments, and decide if the agencies violated notice-and-comment requirements when they adopted the rules, Keith said.

But neither Blackman nor Keith think that will happen. And Amiri doesn’t believe the result will be a repeat of 2016’s Zubik v. Burwell, in which the court declined to rule on nonprofit religious groups’ claims that an accommodation designed to give them a way to opt out of providing health plans that pay for birth control violated RFRA.

This time around, the justices will “decide on the religious question,” Keith said. Further, they may “use this case as an opportunity to interpret and potentially broaden RFRA,” she told Bloomberg Law.

RFRA Compels Decision on Accommodation

RFRA prohibits the government from enacting laws that substantially burden religious exercise, unless they are narrowly tailored to serve a compelling government interest. The Obama administration, reacting to complaints the mandate didn’t comply with the law, adopted an exemption for houses of worship and their affiliates.

But the former administration didn’t exempt nonprofit religious groups, like the Little Sisters of the Poor, an order of Catholic nuns. Instead it offered them an accommodation under which they could opt out of providing insurance coverage for birth control products and services. The accommodation didn’t go far enough in respecting the groups’ views and, therefore, substantially burdens their religious exercise, they said.

If the high court says the Trump administration didn’t have authority to adopt the broad religious exemption, it should go back and decide the question it ducked in Zubik: the original accommodation’s validity, Blackman said. It is still a major question, because the Third Circuit assumed the accommodation is valid, and it remains in effect if the court upholds the injunctions, he said.

The court granted review Jan. 17 but hasn’t yet set a date for oral arguments.

The Pennsylvania Attorney General’s Office represents the states. The U.S. Department of Justice represents the president. The Becket Fund for Religious Liberty represents the Little Sisters of the Poor.

The cases are Trump v. Pennsylvania, U.S., No. 19-454, review granted 1/17/20; Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, U.S., No. 19-431, review granted 1/17/20.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Nicholas Datlowe at