In a 7-2 decision, the U.S. Supreme Court on Wednesday upheld a regulation allowing employers with religious or moral objections to restrict access to birth control through the Affordable Care Act (ACA). The SCOUTS ruling, a victory for the Trump administration and the Catholic charity Little Sisters of the Poor, weakens the so-called contraceptive mandate, which has faced years of legal challenges.
The Obama-era ACA required that employer-provided health insurance plans cover birth control at no cost, classifying it as preventative. Although churches were exempt, nonprofit groups including hospitals and universities weren’t, even if they objected to contraception on religious or moral grounds. The Trump administration said requiring coverage imposes a “substantial burden” on some employers’ religious rights.
Justice Clarence Thomas Praises the Plaintiffs
Pennsylvania and New Jersey had argued that an existing opt-out provision to the mandate was sufficient. But the Little Sisters disagreed, saying any use of their insurance plan for contraception—some of which are abortifacients—violates their beliefs.
Justice Clarence Thomas, in the majority opinion, cited the 1993 Religious Freedom Restoration Act, saying the government may craft both religious and moral exemptions. He praised the plaintiffs, writing, “For over 150 years, the Little Sisters have engaged in faithful service and sacrifice… But for the past seven years, they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision—have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.”
Justices Samuel Alito and Neil Gorsuch wrote a concurring opinion, stating: “The Court has held that there is a constitutional right to purchase and use contraceptives. But the Court has never held that there is a constitutional right to free contraceptives.” Alito argued that Thomas’ ruling should have gone farther, saying states will now claim that today’s ruling is “arbitrary and capricious.” Two liberal justices, Elena Kagan and Stephen Breyer, ruled with the majority but said lower courts might still take issue with Wednesday’s decision.
Sister Constance Veit of the Little Sisters maintained it was “unthinkable” for her group to follow the mandate, saying, “We believe in the dignity of every human life at every stage of life from conception until natural death.”
Carol Tobias, president of National Right to Life, said on Wednesday, “We are pleased that the U.S. Supreme Court recognized the importance of protecting conscience rights.”
Poor Women Will Suffer Most, Say Dissenters
Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented, with Ginsburg writing, “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” Female employees, she adds, now must “fend for themselves.”
Abortion proponents say poor women will be disproportionately impacted. “Religious liberty is a fundamental right, but it does not grant a license to discriminate,” says the ACLU’s Brigitte Amiri. Today’s ruling, she adds, “will exacerbate existing inequalities, falling hardest on people with the fewest resources and people of color.”
According to government estimates, up to 126,000 women could now lose employer-based contraception coverage.