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The Supreme Court will yet again consider which companies must provide birth control

SHARE The Supreme Court will yet again consider which companies must provide birth control

In this March 25, 2014, file photo, Margot Riphagen of New Orleans, wears a birth control pill costume as she protests in front of the Supreme Court in Washington.

Charles Dharapak, Associated Press

Editor’s note: This article was originally published in November 2018. It has been updated to reflect the Supreme Court’s decision to hear two cases on birth control coverage, which was announced Friday.

SALT LAKE CITY — The battle over birth control coverage is back at the Supreme Court.

Justices announced Friday that they will hear two cases challenging the Trump administration’s efforts to allow nearly all companies with a religious or moral objection to contraception to exclude birth control coverage from their health plans.

The cases stem from policy guidelines announced in November 2018, which enabled faith-based nonprofits, religious schools, closely held businesses and anti-abortion rights activists to claim the same exemption from the Affordable Care Act’s contraceptive mandate as houses of worship. The rules also left in place the Obama-era accommodation process, giving religious or moral objectors to birth control the option to have their insurer work directly with employees to provide free contraception coverage.

At the time, many religious freedom advocates applauded the final rules, which President Donald Trump promised early in his presidency.

This "should be the end of a long and unnecessary culture war fight," said Mark Rienzi, president of The Becket Fund for Religious Liberty, on a press call.

But it wasn’t. The policy adjustment simply added to a legal and legislative saga that’s involved hundreds of lawsuits and dozens of rule changes.

Early missteps

To understand the significance of the Supreme Court’s announcement, it's helpful to understand previous birth control guidelines. Here's a rundown of the contraceptive mandate's complicated past.

The Patient Protection and Affordable Care Act was signed into law on March 23, 2010. Four months later, the Obama administration announced that the Health Resources and Services Administration was tasked with deciding which preventive services would be required to be covered cost free under employer health plans.

Comments flooded in, before and after officials outlined potential religious exemptions in August 2011. Faith groups, health policy experts, business owners and others wanted a say in which medications and procedures should count as preventive services and which employers should be eligible for exemptions.

Some commenters, including some faith groups, argued against any exemptions. Others "recommended that group health plans sponsored by religiously affiliated employers be allowed to exclude contraceptive services from coverage under their plans if the employers deem such services contrary to their religious tenets," government officials noted in 2012.

The Obama administration chose to limit the religious exemption to "churches, their integrated auxiliaries and conventions or associations of churches," under the final rules published on Feb. 15, 2012. Some officials had questioned "whether religious arguments against the mandate were sincere," as the Deseret News reported in 2016.

Officials did promise further study of the needs of faith-based nonprofits, protecting affected organizations from penalties for at least one year if they chose not to pay for birth control.

Acknowledging the likely outcry to this narrow exemption, the government explained that "a broader exemption … would lead to more employees having to pay out of pocket for contraceptive services, thus making it less likely that they would use contraceptives, which would undermine the benefits" of the Affordable Care Act.

The contraceptive mandate sparked an onslaught of lawsuits from religious colleges and universities, faith-based nonprofits and business owners, prompting the government to make more changes in July 2013. This set of final rules created a new accommodation process, which allowed religiously affiliated nonprofits to avoid directly providing birth control coverage. Instead, health plan administrators would work directly with employees in need of contraception.

But that satisfied few of the religious objectors whose lawsuits were making their way through the federal court system.

Supreme Court, part 1

The Affordable Care Act's contraceptive mandate first appeared before the Supreme Court in 2014. In Burwell v. Hobby Lobby Stores, Inc., three closely held, for-profit corporations with religious objections to birth control argued that they, too, deserved access to the accommodation offered to faith-based nonprofits.

The case was argued on the basis of the Religious Freedom Restoration Act, a federal policy preventing the government from unnecessarily violating citizens' conscience rights. The Supreme Court ruled 5-4 on June 30 that the contraceptive mandate violated corporations' religious freedom rights.

In response to the loss, the Obama administration yet again revised its birth control policies, publishing a new set of final rules on July 14, 2015. They extended "the accommodation to a for-profit entity that is not publicly traded, is majority-owned by a relatively small number of individuals and objects to providing contraceptive coverage based on its owners' religious beliefs."

Supreme Court, part 2

Despite this notable policy adjustment, the legal drama was far from over. Religiously affiliated nonprofits argued the accommodation process they had to work through made them complicit in the use of sinful medications. They sought the same exemption offered to houses of worship.

The resulting Supreme Court case, Zubik v. Burwell, pitted a group of religious schools and nonprofits, including the now well-known group of nuns affiliated with the Little Sisters of the Poor, against the Obama administration.

On May 16, 2016, the Supreme Court unanimously decided to send the case back to the lower courts, urging religious objectors to birth control and government officials to work together to resolve the legal clash.

"The court does not decide whether the petitioners' religious exercise has been substantially burdened, whether the government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest," the opinion stated, referring to the test the Religious Freedom Restoration Act imposes to determine if a government regulation violates an individual's or group's religious liberty.

Trump has new plans

The Trump administration inherited multiple ongoing lawsuits over the mandate, and chose to be more deferential to those who oppose birth control on religious grounds.

“No Americans should be forced to choose between the dictates of the federal government and the tenets of their faith,” Trump said in May 2017 at a ceremony celebrating a new executive order on religious freedom.

Five months later, officials proposed a new approach to the contraceptive mandate, which would expand the pool of employers eligible for an exemption to “moral” objectors. Both religious and moral objectors to birth control would just have to notify their insurance provider and employees and would face no penalties from the federal government.

Religious groups like the Little Sisters of the Poor were thrilled, unlike women’s rights advocates and some state leaders. The Trump administration faced new lawsuits from Pennsylvania, California and other states over the expanded exemption.

“Donald Trump wants businesses and corporations to control family planning decisions rather than a woman in consultation with her doctor,” said California Attorney General Xavier Becerra to The Sacramento Bee in October 2017. “We'll see the Trump administration in court.”

Latest developments

In spite of these lawsuits, the Trump administration moved forward with its plan to protect religious and moral objectors to birth control. The final rules released in November 2018 formalized what was proposed 13 months before.

At the time, government officials and others argued that the policy shift would affect very few Americans. Most religious objectors to birth control were already covered by the previous rules or had been protected by court injunctions, they said.

“The departments estimate the exemptions should affect no more than approximately 200 employers with religious or moral objections,” according to a fact sheet.

But the lawsuits out of California and Pennsylvania, which the Little Sisters of the Poor, represented by Becket, joined in 2017, continued and the Pennsylvania cases will now be heard by the Supreme Court. The justices’ decision is expected before the end of June.