It’s 2020 and Donald Trump, backed by a bunch of nuns, are coming for your birth control. This is not a drill. I repeat: This is not a drill.
The U.S. Supreme Court is set to hear oral arguments in two cases on Wednesday: Trump v. Pennsylvania and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.
But you may be asking why. Why are we still arguing about this birth control benefit stuff?
Because we are in a dystopian hellscape from which there is no escape. The religious right continues to wield religion as a weapon against your rights guaranteed under the Affordable Care Act (ACA) to preventive health care without a co-pay, including birth control. Shocking, I know.
President Obama, being the standup guy he is, tried to compromise with these people so folks could obtain birth control and religious people could keep their fingers out of the birth control pie.
But now that Donald Trump is president? Compromise? A hearty pshaw, I say.
Trump has rewritten the Obama-era rules so anyone who has a religious objection to the birth control benefit can avoid complying with it. And to add a cherry on top of the shit sundae, he has allowed an exemption to anyone who has a moral objection to birth control.
And get this: It applies to everyone, not just religious organizations or religiously affiliated organizations. EVERYONE. And what’s worse is that he ignored a key federal law regarding rule-making—the Administrative Procedures Act (APA)—to jam this rule down the country’s collective throat.
But rather than prattle on using a bunch of legal mumbo jumbo that will prompt you to lapse into a coma, I thought I’d break down these cases through the use of GIFs.
So strap in and let’s do this.
I should probably start with a quick recap of the birth control benefit and how we got here. If you’ve been following #TeamLegal’s coverage of the birth control benefit cases over the last, I don’t know, eight years, some of this may be familiar to you.
Way back in 2009, the U.S. Senate passed the Women’s Health Amendment, which gave women in this country hope that we wouldn’t continue paying eleventy-seven billion more dollars for health-care services than men have to pay.
More than a year after the ACA became law, the U.S. Department of Health and Human Services (HHS) released guidelines requiring all new private insurance plans to cover preventive services, including breast exams and Pap smears, maternity care, HPV testing, gestational diabetes screening, and breastfeeding support without co-pay.
Women were stoked because forcing women to pay more for health care is discriminatory and unfair. And the thought of getting rid of gender inequality in the delivery of health-care services made us do a happy dance.
You know what else made us do a happy dance? The fact that FDA-approved contraception and contraceptive counseling were part of the insurance coverage mandated by Obamacare.
But some people weren’t doing a happy dance about co-pay-free contraception. Can you guess who those people are?
Including contraception as a preventive service sent the religious right into a frenzy. They complained that providing contraceptive coverage is a violation of their religious freedom under the Religious Freedom Restoration Act (RFRA). Because of course they did.
And even though hella Catholics (that’s a legal term of art) use birth control, the religious right decided that requiring employers to include contraception in their health plans was the worst thing since Jesus was crucified.
So the Obama administration decided to work out an accommodation that would appease the birth control benefit naysayers and still allow employees to access co-pay-free contraceptives.
Here’s how it worked: Certain organizations like churches and houses of worship—places that are super Jesus-y and employ and serve equally Jesus-y people—could exclude contraceptive coverage from their health insurance plans. Seems reasonable, yes?
Other religious organizations—nonprofit organizations like Catholic schools and charities and such—would be able to opt out of the birth control benefit by telling their insurer (or third-party administrator, if they were self-insured), “Hey! We don’t like contraceptive coverage and we’re not going to offer it!” in which case the insurer (or third-party administrator) would be like, “Cool!” and step in and provide contraceptive coverage.
This accommodation seemed like a win-win because religious objectors wouldn’t have to entangle themselves in all this icky birth control business: Religious employers wouldn’t have to provide employees contraceptive coverage, but employees could still get contraceptive coverage directly from the insurer. It seemed like a reasonable workaround.
And so everyone was happy and they all went home.
Actually, that’s not at all what happened because religious nonprofit organizations like Little Sisters of the Poor kept right on complaining. They were none too pleased with Obama and gave him a piece of their mind.
They believed that the very act of informing their insurer—and therefore triggering a process that would lead to their employees obtaining birth control—was in and of itself a violation of the RFRA. They called it “material cooperation with evil.” In their view, telling their insurer to offer contraceptive coverage was basically the same as keeping a bowl of chocolate-covered birth control pills in the employee break room. They didn’t like it one bit.
A deluge of lawsuits followed. Religious organizations—both nonprofit and for-profit—filed dozens of lawsuits challenging the ACA’s birth control benefit, the exemption to the birth control benefit, the accommodation to the birth control benefit, and the accommodation to the exemption to the accommodation to the birth control benefit.
One of those lawsuits prompted scorn and derision: Hobby Lobby v. Burwell.
In Hobby Lobby, a for-profit arts and crafts company complained that they should also be entitled to an exemption from the birth control benefit because Jesus was guiding them in all their sales of yarn and crepe paper. “We want an accommodation too,” they whined like a bunch of babies.
And much to #TeamLegal’s chagrin, the U.S. Supreme Court said, sure, why not. In June 2014, the Court ruled that some for-profit employers could take advantage of the accommodation process.
Two years later, another birth control benefit case landed on the Court’s doorstep: Zubik v. Burwell. Zubik was actually a series of challenges brought by religiously affiliated nonprofits like the Little Sisters of the Poor, who argued they should be exempt from the benefit’s coverage requirements.
But here’s the kicker: Little Sisters of the Poor offers what’s known as a “church plan”—insurance plans that are for the benefit of employees of churches or other religious organizations.
Church plans are covered under a statute called the Employee Retirement Income Security Act of 1974 (ERISA). I won’t bore you with details of one of the most boring federal laws in history, but ERISA bars any government regulation of an employee benefit plan run by a church. This means that organizations with church plans (like the Little Sisters) don’t have to offer contraceptive coverage. So seriously, nuns? What the fuck are you complaining about?
But the Supreme Court punted on Zubik, sending it back to lower courts for them to figure it out.
The real reason they did this was that Antonin Scalia had just taken a permanent dirt nap (RIP), and there were only eight justices on the court: four liberals and four conservatives. The Court knew it would be deadlocked, so what was the point in trying to issue a ruling?
And then came the day that will live in infamy. November 8, 2016. One Donald J. Trump became president. That meant basically we could kiss the birth control benefit—and indeed all of Obamacare—goodbye.
Almost immediately, Trump began to try to dismantle the birth control benefit, appeasing the anti-choice zealots who elected him.
In May 2017, Trump issued an executive order, “Promoting Free Speech and Religious Liberty,” that purported to end any legal obligations the Little Sisters and other religiously affiliated employers had in complying with the benefit.
Then in October 2017, the Trump administration announced new rules that granted secular employers with religious and moral objections to providing contraception coverage the ability to opt out of the birth control benefit. This is utterly bizarre because the RFRA doesn’t allow for moral objections, only religious objections. The statute isn’t called the Moral Freedom Restoration Act, is it? No. No, it’s not.
So what does this mean? Well, it means that, for example, In-n-Out Burger could claim a moral exemption to the birth control benefit. And I think we can all agree that is straight-up bonkers.
But here’s the thing: In issuing these new rules, the Trump administration side-stepped the rule-making process. It was basically a “Fuck it! We’ll do it live!” situation. The administration released a giant black hole of a regulation that allows employers to refuse to comply with the birth control benefit in the ACA if they have a religious or moral objection to contraception.
That didn’t sit well with a bunch of states, including Pennsylvania and New Jersey, which were all, “Hey man you can’t do that. You’re creating regulatory chaos. You gotta follow the Administrative Procedures Act.” So Pennsylvania and New Jersey sued the Trump administration to block the rules, arguing they violated the APA.
What’s the APA, you may be asking. It’s a federal law that dictates how rule-making is supposed to work. The TL;DR version is that the administration can’t issue interim or temporary rules without providing a public notice and comment period. The APA also requires the administration to actually review public comments with an open mind and take them into account before issuing final rules based on those interim rules.
In addition, under the APA, the administration can’t impose rules that are “arbitrary and capricious.” Meaning Trump can’t just issue regulations willy-nilly. (Willy-nilly is a technical term.)
But that’s what Trump did. His administration released interim rules without giving you, citizen, a chance to comment on them. The administration then argued that it didn’t matter if they offered a comment period before issuing the interim rules for two reasons: (1) they offered a comment period afterward; and (2) they had good cause to issue the rules without a notice and comment period because waiting for the notice and comment process would subject employers with religious and moral objections to the birth control benefit to penalties that could be devastating.
But that’s not how it is supposed to work. It doesn’t even make any sense.
Pennsylvania and New Jersey conceded that courts have sometimes permitted rules to remain in effect even absent a notice and comment period if the agency that issued the rules (in this case, HHS) kept an open mind.
But who among us thinks the anti-choice radicals in the Trump administration kept an open mind when crafting the new rules that blow a hole in the birth control benefit?
The administration wanted to ram through these rules in order to appease the religious right. And they can’t do that!
Enter the nuns.
The Little Sisters of the Poor—who had spent the previous five years complaining that the Obama administration was forcing nuns to hand out birth control pills like Halloween candy—now had a new cause célèbre: defending the Trump administration’s efforts to grant wide exemptions to the birth control benefit to anyone who wants one. Are you a secular organization? You get a birth control benefit exemption. Are you a religious organization? You get a birth control benefit exemption. Look under your seat: THERE’S A BIRTH CONTROL BENEFIT EXEMPTION.
So that’s what Wednesday’s arguments are about: Did the administration violate the APA when it decided to grant these sweeping conscience exemptions? Does the RFRA permit the administration to grant such a sweeping conscience exemption on religious and moral grounds?
The Trump administration and the Little Sisters say yes. New Jersey and Pennsylvania say no.
At stake is the rights of students and employees—and their dependents—to access birth control in the face of these absurd sweeping exemptions, rather than having to rely on a wing and a prayer to keep them from getting pregnant.
We know that the birth control benefit has had a positive effect. Numerous studies confirm that the birth control benefit has dramatically reduced out-of-pocket health-care spending. Most women surveyed who had such coverage agreed that it has helped them use the birth control method of their choice and to use it effectively. Several other studies also suggest that the birth control benefit has had a positive impact on the use of prescription methods and consistent contraceptive use.
If the Court lets the Trump administration’s exemption stand, then what’s next? Religious exemptions to laws banning racial discrimination? LGBTQ discrimination? Would employers be able to argue that their religion demands that women be barefoot and in the kitchen? Or that their religion prohibits hiring Black people?
Because that’s where we could be headed, and that’s a frightening prospect.
It would be chaos, people!
So there you have it.
I hope this GIFsplanation helps you understand the birth control cases that the Court will be hearing on Wednesday, and I hope you’ve picked up a little knowledge about how the APA works.
And if you feel like this after reading…
…welcome to the club.