Birth Control

It's 'Access' to Birth Control Versus Employer Beliefs Again at the Supreme Court

The Obamacare contraception mandate continues to cause legal trouble.


Contraception, conscience rights, and the Affordable Care Act (ACA) are at the center of another case before the U.S. Supreme Court. On Wednesday, the court will hear oral arguments (via teleconference) in a case concerning whether health insurance coverage must include birth control at no up-front cost to employees.

In 2014, the Court ruled in Burwell v. Hobby Lobby that the ACA's requirement that all closely-held private companies offer contraception-covering insurance plans violated the 1993 Religious Freedom Restoration Act. In 2016, the Court sent seven consolidated cases concerning Obamacare and birth control back to lower courts.

This week, justices will consider Trump v. Pennsylvania, in which Pennsylvania's attorney general is challenging the Trump administration's 2017 declaration on the subject. That order expanded the range of companies that could object to providing such insurance and removed a mandate that insurance companies pick up the tab when employers wouldn't.

Trump v. Pennsylvania is also consolidated with a similar case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.

At issue at this week's hearing: Did the administration have the authority to expand the contraception mandate's conscience exemption in the first place—and, if so, did its decision not to allow public comments on an initial draft of the rules render the final rules invalid? The Court will also consider whether the U.S. Court of Appeals for the 3rd Circuit was right to affirm a lower court's ruling blocking implementation of the administration's rule.

For more on the particular legal questions involved, see this argument preview from SCOTUSBlog's Amy Howe.

Those in opposition to the conscience rights expansion are once again framing this as a matter of denying women access to birth control. But we shouldn't define access to mean covered-under-an-employer-sponsored-health-care-plan. There are much better ways to expand access—like freeing the pill from prescription-only status, getting rid of restrictions on mail-order pills, and backing community-based health solutions—than forcing the minority of companies that object to covering contraception to do so. Over-the-counter contraception sales and other solutions centered on free markets, technological advances, or localized needs have the ability to expand access to birth control for all who need it, not just those who already have a job and health care benefits.