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Conservatives have been trying to unwind the birth control benefit in the Affordable Care Act (ACA) for nearly a decade now, and the women justices on the U.S Supreme Court are over it.
That much was apparent during oral arguments Wednesday in Trump v. Pennsylvania and its companion case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.
It’s the third time the Court has heard a challenge to the birth control benefit, which guarantees access to FDA-approved contraception methods at no additional cost or co-pay in most employer-sponsored health plans. But this case is the most absurd and dangerous challenge yet.
Justice Ruth Bader Ginsburg drove that point home from the hospital, where she was recovering from a gallbladder procedure while defending the rights of hundreds of thousands of employees the Trump administration is trying to “toss to the winds entirely,” to use her words. Justice Sonia Sotomayor reminded Solicitor General Noel Francisco that should the Court side with the Trump administration, the benefits of around a hundred thousand employees (by even the most conservative estimate) would be in jeopardy. And Justice Elena Kagan appeared to be searching for a compromise she could get the chief justice to sign onto.
By the end of Wednesday’s arguments though, it wasn’t clear if those efforts would be enough to save the benefit from the administration’s efforts to render it meaningless. But it was clear that the liberal justices were beyond exasperated with the Republicans’ never-ending war on the ACA.
While the previous two rounds of litigation focused on the Obama administration’s efforts to balance the rights of employees against employers who may have a religious objection to covering contraception, this latest challenge is an entirely different beast altogether.
At its core is the same central question: Can your boss deny you health insurance coverage for contraception based on a religious objection? But these cases take that question and, like everything in the Trump years, extend it to absurd lengths by asking if your boss can deny you those same benefits based on a moral objection as well.
The moral exemption to the birth control benefit is a toxic addition inserted by the Trump administration three years ago after conservative efforts to upend the benefit in court fell flat. Trump announced the exemption in a Rose Garden ceremony flanked by the Little Sisters of the Poor, the nuns who would continue on as the face of the administration’s efforts to undermine the benefit. It was the kind of reality-TV spectacle that has come to define this administration—full of pomp, empty on substance, but with the potential to unleash an unfathomable amount of chaos in its wake.
And that’s precisely why the administration brought the nuns along. Someone has to sell this pile of garbage to the Roberts Court, and the nuns have proven more than willing to play along.
There is no world in which the nuns would have to provide contraception coverage for their employees. None. Not a single one. They are covered by exemptions, court orders, and a provision of employee benefits law that guarantees the federal government mostly stay out of their business. So when Paul Clement, the attorney representing the Little Sisters, suggested that the nuns would stop providing care to the elderly and poor should they have to simply fill out a form noting their objection to the benefit, I was glad to be covering the arguments from home. Had I been at the Court, I definitely would have been ejected for the spontaneous, “OH COME THE FUCK ON, PAUL” that response requires.
Turns out, I’m as fed up with these cases as the women justices of the Court.
Conservative attacks on the birth control benefit have never been about a religious objection to providing contraception. They’re about trying to wedge open new ways for businesses to avoid complying with all sorts of regulations. The previous two rounds of litigation over the benefit obscured that fact a little bit. The willingness of the Obama administration to continuously try and accommodate every new, bad-faith objection conservatives raised to the benefit didn’t help either. But with the Trump administration, those motives are now crystal clear. This is an administration that believes businesses should not have to play by any rules, especially the ones that equalize benefits among their employees the way the birth control benefit does. That’s why on Wednesday, President Trump confirmed to reporters that he would continue to ask the Roberts Court to eliminate the ACA entirely when the Court hears yet another challenge to the health-care reform law later in the fall.
The litigation over the birth control benefit has always been a Trojan horse designed to destabilize the ACA and provide conservatives a fresh avenue for attacking the law where previous efforts have failed. Of all the various and sundry lawsuits challenging the law, only those attacking the birth control benefit have had even a moderate success. Why? Because in those challenges, conservatives can serve up just the right mix of religion, sex, and shame to confuse the issue of just what everyone is fighting about—whether or not employers have the right to discriminate against employees and call it a religious belief.
To that end, this most recent Little Sisters case is more like the Title VII cases the Court considered earlier this term than the previous challenges to the birth control benefit. In the Title VII cases, the Trump administration defended employers who want the right to fire or refuse to hire LGBTQ employees based on religious objections to either marriage equality or a person being transgender. On Wednesday, the administration defended employers who want to nickel and dime women employees on health insurance benefits and call it an exercise of their faith.
It seems likely the conservative block of the Court will side with the administration and employers here and create huge regulatory carve-outs for corporations under the guise of advancing religious tolerance in the workplace. We’ll know for sure by June.