US Supreme Court upholds employer opt-out for contraception coverage

The US Supreme Court on Wednesday said employers with religious or moral objections to covering contraception for their staff do not have to follow a requirement to do so under the Affordable Care Act, Barack Obama’s signature healthcare policy.

The court in a 7-2 ruling cleared the way for a 2018 government rule issued by the Trump administration that exempts organisations from the contraceptive mandate arising under the 2010 ACA if they had religious or moral objections to birth control.

“We hold that the [government] had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections,” wrote Justice Clarence Thomas, an appointee of George HW Bush, in the majority opinion.

He said religious groups had been fighting “for the ability to continue in their noble work without violating their sincerely held religious beliefs”.

The ACA, also known as Obamacare, required employers to offer health insurance with minimum levels of coverage. Rules implementing the law included access to contraception as a minimum requirement.

Religious groups have for years objected to the contraceptive mandate, saying it forces them to violate their beliefs. Since the ACA was passed in 2010, both the Obama administration and Trump administration sought to provide exemptions to the mandate, which were challenged in the courts.

In 2014, a split Supreme Court struck down the contraception requirement for certain family-owned businesses. The Trump administration in 2018 said any employers with “sincerely held beliefs” against contraception were exempted, in a rule that was challenged by two Democratic-led states.

On Wednesday, that rule, which had been blocked by the lower courts, was upheld by the Supreme Court, which sent the litigation back to the lower courts for further proceedings.

Two liberal justices joined in the ruling, but issued their own separate opinion. Justice Elena Kagan, in an opinion joined by Justice Stephen Breyer, said simply that the federal Department of Health and Human Services had broad discretion to craft rules implementing the ACA.

“The agency gets to decide who needs to provide what services to women,” she wrote.

In dissent, Justice Ruth Bader Ginsburg, joined by fellow liberal Justice Sonia Sotomayor, said the decision had improperly elevated religious views above other rights “in its zeal to secure religious rights to the nth degree”.

“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 wrote.

She noted that between 70,500 to 126,400 women “would immediately lose access to no-cost contraceptive services” as a result of the decision.