Supreme Court clears the way for religious employers to avoid birth control coverage

By David G. Savage

Los Angeles Times

The Supreme Court on Wednesday cleared the way for a Trump administration regulation that would free employers from providing contraceptives to their employees if the company’s owners have a religious or moral objection, potentially leaving more than 120,000 women with no coverage.

The 7-2 decision goes further than before in shielding companies, colleges and charities from the part of Obamacare that requires employers with more than 50 employees to pay the cost of preventive healthcare, including the full range of contraceptives.

In the past, the court had ruled in favor of religious employers and private companies who claimed an exemption based on their religion, including the Hobby Lobby chain of craft stores. But then, the justices also upheld an accommodation proposed by the Obama administration under which the health insurers would step in and provide contraceptives for female workers. The insurers agreed to do so because providing birth control would cost less than paying for a pregnancy and delivery.

But some religious conservatives objected to that approach because it would make them “complicit in sin” if their insurers were involved in providing the contraceptives.

The Trump administration proposed a broader rule to cover more employers and exempt them entirely from the Obamacare regulation. The administration conceded the new regulation, if put into effect, could take away contraceptive coverage from 120,000 women or more.

The rule had been blocked on the grounds that the Department of Health and Human Services did not have the authority to make exemptions to the preventive care law and that the administration did not follow proper procedures.

Justice Clarence Thomas, writing for the majority, said both conclusions were wrong. “We hold today that the departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption. We further hold that the rules promulgating these exemptions are free from procedural defects.”

Thomas was joined by the other four conservative justices and Justices Stephen G. Breyer and Elena Kagan, in a concurring opinion. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

Ginsburg said the court had wrongly tipped the balance too far in favor of religious claims at the expense of the rights of female employees.

Ignoring what Congress did in protecting women’s health, “this court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets,” she said.

State attorneys in Pennsylvania, New Jersey and California sued to challenge the rule, and it was blocked by a federal appeals court in Philadelphia.

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