Supreme Court Strikes Blow to Obamacare's Abortion/Contraceptive Mandate

  • Michael Foust Crosswalk Headlines Contributor
  • Updated Jul 09, 2020
Supreme Court Strikes Blow to Obamacare's Abortion/Contraceptive Mandate

In a key win for religious employers, the U.S. Supreme Court on Wednesday upheld a Trump administration rule that exempts faith-based organizations from the Obama-era abortion/contraceptive mandate.

The controversy dates back to the Obama administration and President Obama’s chief legislative achievement, the Patient Protection and Affordable Care Act (Obamacare). 

The text of the law required the coverage of “preventive care,” which Obama’s Department of Health and Human Services (HHS) interpreted as mandating coverage of any Food and Drug Administration-approved contraceptive and sterilization procedure – including those such as Plan B (which can work after fertilization) and “ella” (which can work after implantation). Pro-life groups consider both drugs abortifacients. 

In 2018, the Trump administration’s HHS finalized a new rule exempting employers with religious and moral objections from the abortion/contraceptive mandate. The new rules did not apply to publicly traded companies.

A coalition of states, including Pennsylvania, filed suit against the Trump administration seeking to overturn the rule.

The Supreme Court on Wednesday upheld the Trump rule and concluded the administration had the authority to issue it. Although the vote was 7-2 in the judgment, only five justices joined the majority opinion. The decision was authored by Justice Clarence Thomas and joined by Chief Justice John Roberts and Justices Brett Kavanaugh, Neil Gorsuch and Samuel Alito. Justices Stephen Breyer and Elena Kagan – members of the court’s liberal bloc – joined only in the judgment.

The Little Sisters of the Poor, an institute of Catholic nuns who serve poor elderly people, brought the case.

“We hold today that the [Trump administration] Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption,” Thomas wrote.

For over 150 years, Thomas wrote, the Little Sisters “have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother.”

“But for the past seven years, they – like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision – have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs,” Thomas wrote. “After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns – the administratively imposed contraceptive mandate.” 

Ed Whelan, president of the Ethics and Public Policy Center, applauded the decision but said it didn’t go far enough.

Specifically, Whelan pointed to a concurring opinion by Alito, who said the federal Religious Freedom Restoration Act requires an exemption to the abortion/contraceptive mandate. The majority opinion, though, did not tackle that issue.

“This victory for the Little Sisters does not bring an end to the litigation,” Whelan wrote at the National Review.


Supreme Court Takes Up Obamacare Abortion/Contraceptive Mandate

Photo courtesy: ©Getty Images/Henadzi Pechan

Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.