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Supreme Court to review Obamacare requirement that employer-provided health insurance plans pay for contraceptives

Posted January 17, 2020 5:20 p.m. EST

— The Supreme Court agreed on Friday to step in and review the Trump administration's attempt to weaken the so-called "contraceptive mandate," the Affordable Care Act's long-controversial requirement that employer-provided health insurance plans cover birth control as a preventive service.

The court took up two cases concerning the contraception mandate -- one appeal brought by the Trump administration, and the other by the Roman Catholic religious order for women the Little Sisters of the Poor.

It is likely that decision would come out this year in the heat of the presidential election.

The cases address the Affordable Care Act's requirement that many group health plans and insurance companies to provide preventive services that include contraception without a co-pay. The so-called "contraceptive mandate" exempts churches and other entities with religious objections.

In 2018, the Trump administration expanded those exemptions to cover other entities with sincere religious or moral objections. The new rules were immediately challenged by Pennsylvania and other states, as well as by the Little Sisters. Lower courts have blocked the Trump administration rules nationwide, with the 3rd US Circuit Court of Appeals affirming a Pennsylvania federal level ruling against the Little Sisters in July.

"I look forward to making our case before the Justices," Pennsylvania Attorney General Josh Shapiro told CNN in a statement Friday. "Two federal courts have blocked this rule and we are confident the Supreme Court of the United States will do the same."

The Little Sisters' petition asked the court to consider whether the group could bring the case, as well as the broader question of whether the federal government can legally provide religious exemptions to the contraceptive mandate. It cites the Religious Freedom Restoration Act of 1993, which was designed to prohibit the federal government from "substantially burdening" a person's exercise of religion.

The petition continued a long-standing battle between the nuns -- bolstered by friendly policies from the Trump administration -- and proponents of the contraceptive mandate previously in the federal government and now in the states.

Katie Keith, a professor at the Georgetown University Law Center, said that the case could draw a lot of attention and show the impact of Trump nominees Justices Neil Gorsuch and Brent Kavanaugh. "It's going to be a packed term for some of these big issues," she said. "I think you're starting to see that litigation over the birth control mandate is no exception, so it's off to the races."

"Not for the first time and not for the last, the Justices will consider the thorny legal issues that arise from applying generally applicable rules to religious groups," said CNN contributor Steve Vladeck, a professor at the University of Texas School of Law.

"In this context, matters are further complicated by the Trump administration, and its effort to exempt groups arguably covered by the underlying insurance coverage mandate," he added. "These days, when law, politics, and religion mix, the result is always controversial."

The Little Sisters challenged the mandate before the court in March 2016, seeking an exemption similar to what has been provided to houses of worship such as churches. Although the Obama administration offered them an accommodation meant to respect their religious objections, they and other groups said it was not good enough because it would still make them complicit in providing the coverage.

The court later issued an order asking both sides to consider an alternative and address the question of whether "contraceptive coverage could be provided to petitioners employees, through petitioner's insurance companies, without any such notice from petitioners." Both the Obama administration and religious groups, including the Little Sisters, said they were open to a compromise, and that May, the court issued a unanimous ruling not to decide the case on the merits, but instead sent the case back down to the lower courts for opposing parties to work one out.

But the landscape has changed under the Trump administration issued two final rules in 2018, including providing an exemption from the contraceptive coverage mandate to entities that object to such coverage based on religious beliefs. In January, Pennsylvania and California went to court to challenge the new rules, with federal judges in both states then halting them from going into effect.

After the 3rd US Circuit Court of Appeals affirmed the federal level ruling against the Little Sisters in July, the nuns looked to the Supreme Court to take up the case.

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