WASHINGTON – On news that the U.S. Supreme Circuit issued its decision in Little Sisters of the Poor v. Pennsylvania, holding that agency rules that provide an unconditional religious exemption from the Affordable Care Act’s contraceptive coverage requirement to not-for-profit, educational, and for-profit employers, are permitted by the Affordable Care Act, CAC President Elizabeth Wydra issued the following statement:

The Court’s decision empowers the government to make it harder for some employees to access contraception, thereby allowing the government to subvert the ACA’s promise of universal contraceptive coverage.

With today’s ruling, as Justice Ginsburg wrote in her dissent, “[T]his Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets. The Constitution’s Free Exercise Clause, all agree, does not call for that imbalanced result.”

Nor does the Religious Freedom Restoration Act: Accommodations that allow religious objectors to opt out of generally applicable legal requirements, while third parties fulfill their obligations, represent a longstanding method of ensuring religious liberty, while also protecting the rights of third parties and furthering important governmental purposes.  

As we explained in our brief on behalf of military historians, what the challengers of the accommodation in this case suggested is an impermissible burden on free exercise is, in fact, a historically common practice. Our history is replete with examples of accommodating conscientious objectors by shifting their obligations to third parties who do not share that objection. The Court ignored that history today, and those who depended on the ACA for contraceptive services are the worse off for it.

#

Resources:

CAC brief on behalf of military historians in Little Sisters of the Poor v. Pennsylvania: https://www.theusconstitution.org/litigation/little-sisters-of-the-poor-v-commonwealth-of-pennsylvania-donald-j-trump-v-commonwealth-of-pennsylvania/ 

“The Fight Over the Affordable Care Act and Birth Control Is Back at the Supreme Court,” David Gans, Slate, May 4, 2020: https://slate.com/news-and-politics/2020/05/obamacare-and-birth-control-supreme-court-fight-sisters.html 

##

Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at www.theusconstitution.org.

###