From hospital bed, Ginsburg challenges Trump plan to limit Obamacare’s birth-control coverage

Justice Ruth Bader Ginsburg, speaking Wednesday from a hospital room in Baltimore, sharply challenged the Trump administration’s plan to exempt employers who have religious or moral objections to birth control from an Obamacare rule mandating that most health plans offer no-cost contraceptives.

“You are shifting the cost of the employer’s religious beliefs onto the women who don’t share those religious beliefs,” she told Trump’s Solicitor General Noel Francisco, during an oral argument conducted via a telephone conference between justices and attorneys in response to the coronavirus-related shutdowns.

That already-unprecedented accommodation by the Supreme Court led to another first: a justice participating in an oral argument from a hospital bed. The 87-year old Ginsburg was admitted Tuesday to Johns Hopkins Hospital after suffering from an infection related to gallstones. She is expected to be released Wednesday or Thursday, but was able to phone in to the oral arguments and participate.

Ginsburg took the opportunity to bluntly tell the Trump lawyer why the expanded opt-out rule was wrong in her view. “You have just tossed entirely to the wind what Congress thought was essential, that is, that women be provided these services, with no hassle, no cost to them,” she said. “The women end up getting nothing.”

The extraordinary exchange highlighted an argument in which the justices sounded closely split in this clash between religious rights and women’s rights.

Three years ago, the Trump administration proposed to give employers, including universities and private companies, a broad right to opt out of providing contraceptives to employees and their spouses. They said such a sweeping change was authorized under the 2010 Affordable Care Act, a point strongly disputed by Democratic state attorneys.

If the rules are upheld, between 70,000 and 126,000 women would lose coverage for contraceptives this year, according to the administration. Women’s rights advocates say the number is likely to be far higher, depending on how many employers seek to opt out of the requirement.

While federal judges have blocked the new rules from taking effect, Trump’s lawyers had hoped the court’s conservatives would side with the administration. But Chief Justice John G. Roberts Jr. did not sound ready to rule squarely for the government.

At one point, Roberts said he did not understand why the two sides in this dispute could not work out a compromise that protected religious employers but also provided the promised contraceptives. He also questioned what he said was the administration’s overly broad reliance on a federal law that says the government should not put a “substantial burden” on individuals exercising their freedom of religion.

Wednesday’s argument did not feature the clear ideological divide that is usually on display in culture war cases such as this one. In the courtroom, where the justices are free to speak up, the four liberal justices would normally dominate the questioning when a Trump administration lawyer was speaking. Then, when the attorney fighting the administration stepped forward, the conservative justices would lean forward in their seats and start firing questions.

But the format being used this week does not permit such a free-for-all. Since the justices are on phones, they speak in order after they are recognized by the chief justice. After about three minutes, Roberts breaks in to recognize the next justice. This sequencing appeared to lessen the ideological tone of the debate. Rather, several justices began by saying they wanted to pick up with the question asked by their colleague, even if the two justices have quite different views.

What is unclear is whether these more friendly exchanges will change the outcomes.

Ever since Obamacare made contraceptive coverage a required feature of most health insurance plans, it has been under attack from religious conservatives.

Churches and other houses of worship were exempted from the requirement, and the Obama administration devised an accommodation that allowed religious charities and others to opt out of paying directly for contraceptives. Instead, their health insurers covered the cost, since birth control saved them money when compared to a pregnancy and child birth.

The Supreme Court upheld such an accommodation for the owners of the Hobby Lobby Stores in 2014 because the chain’s owners objected to paying directly for contraceptives. By a 5-4 vote, the court said the insurance requirement put a “substantial burden” on the religious freedom of the owners.

But that accommodation did not go far enough for some religious conservatives, and they insisted the government must exempt some employers entirely — including their insurers — from providing contraceptives. Lawyers for the Little Sisters of the Poor, a Catholic charity, complained that they and their insurers were being “hijacked” by the government and made complicit in what they viewed as sinful behavior.

The Trump administration proposed regulations in 2017 to give religious charities and others the right to opt out entirely from the required contraceptive coverage. They added a new wrinkle by including those with “moral” as well as religious objections.

Democratic state attorneys from Pennsylvania, New Jersey and California, among others, went to court to challenge the Trump administration’s regulations. The 3rd Circuit Court in Philadelphia said the 2010 law required employers to provide health coverage for preventative care, and it did not give the government the authority to exempt large groups of employers.

The justices were hearing the administration’s appeal in a pair of cases called Trump vs. Pennsylvania and Little Sisters of the Poor vs. Pennsylvania.