Now that the federal government has thrown its weight behind a California court’s decision to unfreeze the controversial birth control mandate, the justices of the nation’s highest court on Wednesday face a tough call.
If the justices refuse to take up the Obama administration’s appeal, the only way for birth control to remain affordable for American women who receive benefits under the Affordable Care Act would be for employers to pay the full price for contraception. That choice would disadvantage women who already can obtain birth control at a lower cost through their health plans or employer-sponsored health plans because the justices last week barred major exemptions from the requirement.
This decision, which has brought the birth control mandate into greater public focus, has pitted the Obama administration against the new Republican-controlled Congress and the administration of President Donald Trump.
Since the lower court decision in June, more than half a million businesses, religious organizations and individuals have urged the justices to resolve the dispute. Federal law requires health plans providing contraceptive coverage to comply with a provision that offers free contraception, but religious nonprofits are exempted from the mandate if their owners object on religious grounds. The president, however, rescinded an executive order exempting nonprofits as part of his attempt to wipe away former President Barack Obama’s agenda.
In October, Health and Human Services Secretary Tom Price, in what was seen as an effort to undermine the court’s decisions, issued new guidelines that offered more ways for employers to take issue with the contraception mandate.
The Affordable Care Act and administrative regulations were designed to make contraceptives easily accessible and affordable to women around the country. Birth control is essential to preventing unintended pregnancies, which have topped 2 million annually in the United States. The Justice Department, and Trump in his speech on Wednesday, seized on the fact that many American women have difficulty getting contraceptives because of high co-pays and other challenges.
“We want to remind the court that the Affordable Care Act guaranteed that women would be able to have birth control for free,” said Solicitor General Noel Francisco, who last week made the case for the Justice Department’s appeal. “If the court blocks the judgment, countless American women will not be able to obtain their birth control at no cost.”
Lawyers on both sides of the suit were scheduled to file separate amicus briefs supporting or opposing the appeal before the justices.
The Supreme Court in the past has delayed rulings in other cases that concern aspects of Obamacare until after Congress acted. But it would be unprecedented if the justices decided to hold off on a final decision until Congress decides whether to defund the government, something that is nearly impossible given the Republican majority.
Liberal lawyers said the lower court decision was sound.
“It is not constitutionally necessary for Congress to resolve the case yet because HHS and Congress both have the lawful tools to control the insurance plans they administer,” wrote April Longtin, a lawyer at the Public Citizen Litigation Group. “Appellants have no legal basis for refusing to provide contraception coverage for women covered by the Exemption and/or the employer-sponsored plans that satisfy the Benefit.”
James Bopp Jr., an attorney at the Thomas More Society who is representing religious employers seeking to block the provision, said they are not seeking to thwart birth control access. “We are simply arguing that Congress should provide further protections under the Religious Freedom Restoration Act (RFRA) to the religiously based objections that purportedly now qualify for exemption,” he said.