The U.S. Supreme Court ruled on Wednesday that allows employers to opt-out of providing birth control for their employees. The court’s 7-2 decision upholds President Donald Trump‘s position that employers should be granted an exemption for covering birth control, initially provided by the Affordable Care Act. The provision was aimed at delivering no-cost contraceptive services for women, though Trump has been trying to effectively dismantle the ACA entirely throughout his first term in office.
The case itself revolved around a 2018 regulation from the Department of Health and Human Services that exempted any employer from following the mandate, so long as they had a “religious or moral objection to contraception,” according to ABC News. The policy was challenged by 17 states, led by Pennsylvania and New Jersey, who called the mandate fundamentally unlawful, believing the rationale to be “arbitrary and capricious.” While the ACA requires insurers to include “preventive care and screenings” as part of “minimal essential coverage” for Americans, it was left up to the HHS to define what services qualify.
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Since the ACA became law in 2010, all contraceptives approved by the FDA were included in the mandate, which provided birth control to millions of women. Justice Clarence Thomas, who wrote the majority opinion, concluded that a “plain reading” of the law gives the administration “virtually unbridled discretion” to decide what counts as required coverage, which includes both religious and moral objections. “No language in the statute itself even hints that Congress intended that contraception should or must be covered,” Thomas continued. “It was Congress, not the [administration], that declined to expressly require contraceptive coverage in the ACA itself.”
Justice Elana Kagan, who joined the majority vote, indicated that the fight over the exemptions isn’t over just yet. While she didn’t argue that the administration has the right to change the policy, she did write that “I question whether the exemptions can survive administrative law’s demand for reasoned decision making,” and that the “issue remains open for the lower courts to address.”
Meanwhile, Justices Ruth Bader Ginsburg and Sonia Sotomayor were the two who voted against the ruling, writing that the court’s decision “leaves women workers to fend for themselves.” Ginsburg added that “as the government estimates, between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services” under the judgment.
