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Opinion: Did the Supreme Court just gift wrap a win for Trump and the religious right? Not quite

Activists who support the contraceptive mandate demonstrate outside the U.S. Supreme Court in Washington.
(Pete Marovich / Bloomberg)

A divided Supreme Court appeared to hand a major victory to President Trump and the religious right Wednesday when it ruled that the administration could, in fact, undermine the mandate that employer-provided health insurance plans cover birth control for women with no out-of-pocket costs.

But the ruling appears to give the next president the power quickly to reverse much of Trump’s initiative. And in the meantime, it left the door open for proponents to keep fighting on behalf of contraceptive coverage for all female employees.

At issue are the breathtakingly broad exemptions that the Trump administration provided to the rule, promulgated under the Obama administration, requiring health insurance policies to cover specific forms of female contraception and sterilization. The 2010 Affordable Care Act required new insurance policies to cover preventive care at no extra cost, but it left it to the federal Health Resources and Services Administration to specify which forms of care had to be covered.

The Obama administration, under pressure from religious employers, exempted churches and created a workaround that required insurers or plan administrators to provide, on their own dime, the contraceptive coverage to a religious-affiliated employer’s workers. The workaround didn’t satisfy some religious-affiliated entities and private employers with strong religious beliefs, such as the Catholic service organization Little Sisters of the Poor, which complained that the workaround made them complicit in immoral behavior. So the Trump administration issued new rules, declaring that any employer with a “sincerely held” religious objection and any non-publicly traded employer with a similarly strong moral objection could just ignore the mandate.

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As I have written previously, the argument against the Obama workaround is baloney, undone by its critics’ gross misunderstanding of the mechanics. The Supreme Court, however, didn’t address the question of whether the previous rule was adequate; instead, it focused solely on whether the Trump administration had the authority under the ACA to do what it did. And the court’s five conservatives, joined by liberal Justices Elena Kagan and Stephen Breyer, held that it did. (Actually, in her concurrence Kagan argued that the law wasn’t clear but that, under the court’s landmark Chevron ruling, the court had to defer to the administration’s interpretation.)

It’s a mistake to dismiss the Paycheck Protection Program based on the big names who benefited. Still, the program isn’t reaching everyone it should.

But, much to Justice Samuel Alito’s chagrin, the majority opinion (written by Justice Clarence Thomas) did not hold that the Trump administration was compelled to exempt employers with a sincerely held religious objection to the mandate. Alito would have ruled that the federal Religious Freedom Restoration Act required a complete exemption, but that question wasn’t before the court.

Instead, it is likely to be litigated in the lower courts as opponents of the Trump rule argue that, although the administration may have had the authority to issue the exemption, the scope was arbitrary and capricious. Kagan helpfully laid out a roadmap for them, citing a series of court precedents.

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“An agency acting within its sphere of delegated authority can of course flunk the test of ‘reasoned decisionmaking,’” Kagan wrote. “The agency does so when it has not given ‘a satisfactory explanation for its action’ — when it has failed to draw a ‘rational connection’ between the problem it has identified and the solution it has chosen, or when its thought process reveals ‘a clear error of judgment.’ ... Assessed against that standard of reasonableness, the exemptions HRSA and the Departments issued give every appearance of coming up short.”

Among the reasons, Kagan asserted, are the “mismatch between the scope of the religious exemption and the problem the agencies set out to address” and the failure to minimize the harm to women who are denied contraceptive coverage. Although some employers may feel as if the Obama workaround leaves them complicit in immoral behavior, regardless of whether it actually does, not every employer that is religiously affiliated or has a moral objection to contraception has that belief. Yet Trump’s rule exempts them all.

The Little Sisters don’t have a direct stake in this fight; a federal judge in Colorado has permanently blocked the mandate from applying to the Sisters or its insurer, Christian Brothers, which itself is a religious-affiliated entity.

But female employees do have a stake. The Trump administration has gone to great lengths to make it more expensive for them to obtain contraceptive coverage. Perhaps the president will pay for that in November, but in the meantime, the Supreme Court left the door open for the fight to continue.


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