The Supreme Court on May 6th heard arguments in Little Sisters of the Poor v. Pennsylvania. In this case, the Supreme Court had to determine the validity of a new regulation promulgated by the Department of Health and Human Services that expanded the types of entities that could be exempted from the Affordable Care Act’s contraception mandate.
The contraception mandate was enacted to ensure that female employees over the age of 18 had access to at least one FDA approved contraception. Just two years after the contraception mandate was enacted, the percentage of women who could afford oral contraception quadrupled. Despite the benefits of the contraception mandate, some deeply religious employers opposed it as they believed it forced them to fund the use of contraception which they equated with being forced to fund abortions.
In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court in a 5-4 majority opinion upheld a regulation that exempted closely held for- profit corporations with deeply held religious beliefs from the contraception mandate. In 2017 The Department of Health and Human Services promulgated a new regulation that expanded the types of organizations that could be exempt from the contraception mandate. This regulation was promulgated without first issuing, or taking comment on, a notice of proposed rule making. A panel of The United States Court of Appeals for the Third Circuit issued a preliminary nationwide injunction that kept the new regulation from going into effect.
At the Supreme Court, the Little Sisters of the Poor advocated for the Department of Health and Human Service’s new regulation: “when the government intrudes on deeply sensitive religious beliefs through a mandate that admits of exemptions, the way to eliminate the burden is to extend the exemption.”
Opponents argued that the regulation was improper for two reasons.
First, opponents of the new regulation argued that only Congress, not the Department of Health and Human Services has the power to determine the types of entities that can be exempted from the contraception mandate. Second, opponents argued that the new regulation was invalid because the Department of Health and Human Services failed to comply with the Administrative Procedure Act. Most importantly, opponents of the new regulation argued that broadening the types of entities that could be exempted from the contraception mandate would disrupt the “sensible balance” Congress expected to maintain when granting exemptions to otherwise valid laws.
The Little Sisters of the Poor generated a lot of buzz in the legal world. Over 50 amicus briefs were filed for this case, including a brief on behalf 19 states advocating for broader exemptions to the contraception mandate.
At Oral Arguments, Chief Justice Roberts asked counsel for the Little Sisters of the Poor whether the new regulation was overly broad.
This candid question allows us to speculate, that although a majority of the Hobby Lobby Court including Chief Justice Roberts were in favour of the religious exemption, a majority of this court could oppose broadening exemptions to the contraception mandate.
Of course, we will only know whether the new regulation will go in to effect when the court delivers its opinion; for now the future of the contraception mandate remains in question.
Disclaimer: Views expressed above are the author’s own.