Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Monday, May 11, 2020

The Women of the Supreme Court are Sick of These Nonsense Objections to Birth Control

The Women of the Supreme Court are Sick of These Nonsense Objections to Birth Control

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.

 

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.

https://lawprofessors.typepad.com/gender_law/2020/05/the-women-of-the-supreme-court-are-sick-of-these-nonsense-objections-to-birth-control.html

Constitutional, Religion, Reproductive Rights, SCOTUS | Permalink

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