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May 12 2020

Not The Only Stupid Argument In The Supreme Court Today

There was also this one-

Religious Freedom Demands That Women Be Denied Birth Control, Trump Administration Tells Supreme Court
by Jordan Smith, The Intercept
May 12 2020

During oral arguments on May 6, before a U.S. Supreme Court working remotely amid the coronavirus crisis, Justice Ruth Bader Ginsburg had one question on her mind: What about the women?

It’s a question that was never really answered in more than an hour and a half of back and forth about statutory construction, administrative rule-making, and religious freedom. And yet it sits at the heart of a legal challenge to the Affordable Care Act’s mandate that women be provided no-cost contraceptives — a provision that provides birth control access to millions of women.

At issue in the case is whether the Trump administration can exempt any employer that objects on religious or moral grounds from having to provide insurance that covers the full range of birth control.

According to the administration, the religious freedom of employers would be unconstitutionally trampled upon unless they’re exempted from the requirement. According to the state of Pennsylvania, which defended the birth control mandate before the court, the administration’s rules were improperly enacted and go far beyond protecting religious beliefs to the potential detriment of millions.

Among the groundbreaking achievements of the Affordable Care Act was that it required basic health services to be provided at no cost. The Women’s Health Amendment specifically extended the mandate to a suite of reproductive health services, including access to all Food and Drug Administration-approved contraceptives.

Prior to the ACA, which also prohibits sex discrimination in health care, women had long paid more in insurance premiums and out-of-pocket costs, particularly for birth control. Because of the law, more than 61 million women have access to no-cost contraceptives, a mandate that saves women roughly $1.4 billion per year.

And it makes sense to cover contraceptives. They reduce unintended pregnancy and encourage birth spacing; they promote gender equality and are linked to higher educational attainment and increased earnings for women — outcomes that directly impact children and families.

Nonetheless, from the start, churches were exempt from having to provide the coverage. Religiously affiliated nonprofits like hospitals and universities subsequently said they should be exempt too. The Obama administration disagreed, saying that exempting them would subject employees to the religious views of their employers. But his administration devised a workaround: An affiliated organization could submit a form to its insurance provider or the federal government saying that it objected to the coverage, which in turn would allow the insurer to provide it directly to the employee. (The accommodation was later extended to closely held for-profit companies after Hobby Lobby sued.)

But many religious organizations still balked. Requiring them to formally object, they argued, would jumpstart a process to provide the coverage they objected to, making them complicit in providing that coverage. The ongoing dispute bounced around in the courts until the spring of 2017, when the Trump administration announced that it would fix things — with a clear indication that it would endeavor to give the objectors exactly what they wanted: a way to disregard the birth control mandate.

But the administration — via various departments that play a role in the ACA, including Health and Human Services — ultimately went further. Under rules rolled out that fall, religious organizations would be allowed to opt out without ever notifying anyone of their intentions — leaving women in the lurch with no notice that their birth control would no longer be covered. On top of that, the administration crafted a second carve-out that allows nearly any employer in the country to deny coverage based on “moral objections,” which could encompass pretty much anything.

Despite the real-world harms to women that would arise from denying access to no-cost birth control, the oral arguments largely focused on other issues, including the role of the Religious Freedom Restoration Act in constraining coverage requirements and whether an arm of HHS can decide, at will, to exempt employers — and as such, hold power over who will receive birth control.

Which brings us back to Ginsburg’s question, aimed at each of the lawyers before the court: “You have just tossed entirely to the wind what Congress thought was essential, that is, that women be provided these … services, with no hassle, no cost to them,” she posited to Francisco. “Instead, you are shifting the employer’s religious beliefs, the cost of that, on to these employees who do not share those religious beliefs.”

“And I did not understand RFRA to authorize harm to other people, which is evident here, that … the women end up getting nothing,” she continued. “They are required to do just what Congress didn’t want.”

“I would disagree with the premise of your question because there’s nothing in the ACA … that requires contraceptive coverage,” Francisco responded. “Rather, it delegated to the agencies the discretion to decide whether or not to cover it in the first place.”

Indeed, a main thrust of the government’s argument is that Congress didn’t require birth control coverage specifically, only that women’s health services be provided — Congress directed the health agency to come up with the list of essential services. The government apparently believes that whether contraceptives are essential is a matter of debate, perhaps unsurprising for an administration that has elevated birth control skeptics and proponents of abstinence education to policymaking positions.

Still, the argument seems to have resonated with the newest justice, Brett Kavanaugh, whose hostility to women’s reproductive rights was among the assets that got him the job. There are certainly “very strong interests on both sides” of the case, he said. Kavanaugh suggested that each administration should be free to use its discretion to decide how birth control should be covered since Congress didn’t lay out any particular requirement in the main text of the ACA. “It seems to me the judicial role is not to put limits on the agency discretion that Congress has not put there.”

Chief Justice John Roberts and Justice Stephen Breyer seemed frustrated by the arguments and in search of some middle ground. “I don’t understand why this can’t be worked out,” Breyer said. Several justices expressed concern that Trump’s legal justifications for the rules “sweep too broadly,” as Roberts put it.

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