Birth control pills – Photo: ParentingPatch, via Wikimedia.
The U.S. Supreme Court has supported a Trump administration rule to allow employers with sincerely held religious beliefs to deny employees insurance coverage for contraceptives under the Affordable Care Act — a decision that could potentially have negative consequences for LGBTQ people.
The 7-2 majority decision could see employers using religious beliefs to justify denying coverage for HIV medication, hormone therapy and gender confirmation surgery for transgender people, or STD testing for those engaging in premarital sex, LGBTQ advocates warn.
The provision in the Affordable Care Act was intended to ensure that women, particularly low-income women and women of color, would be able to have the cost of birth control covered by their insurance without being forced to pay out-of-pocket or charged higher premiums for reproductive care.
However, ever since the health care law’s passage, that provision has been challenged by religious groups arguing that it violates the religious freedom of employers who morally oppose contraceptives or consider them equivalent to abortion, by forcing them to subsidize insurance coverage through their employee health plans.
Under the Obama administration’s rules for implementing the requirement, large employers could object on religious grounds to providing this insurance so long as they gave notice of their objection so employees could apply for supplemental insurance to cover contraception and any other medication or procedures to which the employer might object. But the Trump administration changed the rules, allowing any employer to deny insurance coverage based on personal or moral objections, and to do so without notifying their employees.
Pennsylvania and New Jersey sued to block the Trump administration’s rules from taking effect, arguing that they were inconsistent with the Affordable Care Act and were adopted without notifying the public or allowing them to comment on the proposed changes. The Little Sisters of the Poor Saints Peter and Paul Homes, a self-insured religious order, intervened in the case to help defend the rule change.
In its ruling, the court overturned lower court decisions and broadened an existing carve-out for religious employers in the contraceptive coverage mandate by extending it to all employers. According to government estimates, this could result in as many as 125,000 women losing their coverage.
Justice Clarence Thomas, who authored the majority opinion, wrote that the Trump administration “had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections.”
But Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, slammed the court’s decision as an overreach by advocates of so-called “religious freedom” and a further erosion of reproductive rights.
“In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs,” Ginsburg wrote. “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.
“Destructive of the Women’s Health Amendment, this 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,” Ginsburg added.
“The Constitution’s Free Exercise Clause, all agree, does not call for that imbalanced result. Nor does the Religious Freedom Restoration Act of 1993 condone harm to third parties occasioned by entire disregard of their needs.
“I therefore dissent from the Court’s judgment, under which, as the Government estimates, between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services.”
The decision potentially has myriad negative ramifications for LGBTQ individuals, on the grounds that allowing employers to justify any refusal to provide insurance coverage for procedures or treatments to which they object — no matter how flimsy or insincere the objection — could leave LGBTQ people scrambling to find alternative sources of insurance, subject them to sticker-shock by requiring them to pay exorbitant out-of-pocket costs, or force them to forego treatment altogether, thus endangering their health.
Advocates have noted that transgender men — while often ignored by courts — are also affected by restrictions on birth control.
Using the rationale embraced by the majority, an employer could potentially refuse to provide coverage for the most trivial or nonsensical reasons while cloaking themselves in religion.
For example, an employer could refuse to cover life-saving antiretroviral medication for a person living with HIV; gender confirmation surgery or hormone therapy for a transgender individual; the cost of STD testing for a person who engages in premarital or extramarital sex; treatment for lung cancer due a person’s lifelong smoking habit; and even treatment to an overweight diabetic person on the grounds that their physical condition was caused by the sin of “gluttony.”
“It is hard to overstate the harm the Supreme Court has visited today both upon women and other vulnerable populations, and upon the rule of law and fundamental fairness,” Jennifer Pizer, the law and policy director and senior counsel at Lambda Legal, said in a statement.
“It has endorsed the Trump administration’s high-handed flouting of both the will of Congress and our rules of administrative procedure. But religious freedom has never been a license to deny the rights of others and give the back of one’s hand to the rule-making process.
“In effect, the Court today has given the administration a green light to ignore Congress and the rights of workers to receive promised benefits, all in the name of religious freedom. That was not and cannot be what the framers intended.
“Today’s ruling goes beyond simply allowing certain employers to cite religion or personal morality-based reasons for denying their employees birth control coverage in the employee health care plans required by the ACA,” Pizer added.
“Instead, it permits essentially all employers — both religious and secular — to effectively block their employees from securing that essential health benefit through another route. We call upon Congress to fix this travesty, which today’s decision acknowledges Congress can do.”
“The Court today gave a green light to the Trump administration’s rules that grant sweeping religious and moral exemptions to employers who want to deny their employees coverage for birth control, a benefit otherwise guaranteed by the Affordable Care Act,” Julianna Gonen, the federal policy director for the National Center for Lesbian Rights, said in a statement.
“While prior regulations and court decisions had limited such exemptions to religious entities or companies controlled by a small group of people with shared religious beliefs, today’s decision allows any employer to cite religious or moral objections and withhold coverage for essential preventive services.”
Brigitte Amiri, the deputy director of the ACLU Reproductive Freedom Project, called the high court’s decision “shameful” and claimed it distorts the idea of religious liberty.
“Denying employees and students coverage for birth control will limit their ability to decide whether and when to have a family and make other decisions about their futures. And it will exacerbate existing inequalities, falling hardest on people with the fewest resources and people of color,” Amiri said.
“What’s important to note is that today’s decision is not a mandate that employers and universities drop birth control coverage from their plans. Most employers will continue to provide coverage, and we urge all businesses and schools to do so and stand against this discrimination.”
Katy Joseph, the director of policy and advocacy at Interfaith Alliance, argued that the decision, in fact, infringes upon the religious freedom of employees, particularly those who may hold religious beliefs or views that differ from their employer.
“Choosing whether and when to use birth control are deeply personal and for many people, informed by religious and moral conviction. Making healthcare decisions based on your personal beliefs and needs is a matter of religious freedom — and no one’s business but your own,” Joseph said in a statement.
“The First Amendment of our constitution protects every American’s ability to believe as we choose, ensuring no one person is forcibly subject to the beliefs of another. The government may not act as the enforcer either, prohibiting the establishment of a state religion and banning policies that offer preferential treatment to religious institutions not available to their secular peers,” Joseph said.
“This measure of fairness, which has enabled diverse religious and nonreligious communities to flourish within the United States for centuries, has lost much of its meaning as the Trump Administration and its allies carve out ever greater exceptions for religious groups.”
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