U.S. Supreme Court hears arguments (again) over religious objections to contraceptive mandate

by | May 8, 2020

In the latest episode of the BJC Podcast series Respecting Religion, BJC Executive Director Amanda Tyler and General Counsel Holly Hollman discuss the Supreme Court’s oral argument this week in Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania, two consolidated cases that challenge the Trump administration’s broad religious accommodations from the contraceptive mandate in the Affordable Care Act. (You can read a transcript of the oral argument here)

If you are having déjà vu and thinking the Court has already discussed this issue, you’re right! Actually, this is the third time this topic has come before the Supreme Court in one form or another (see Hobby Lobby in 2014 and Zubik in 2016).

The podcast offers an incredibly helpful primer on the issues and how we got to this third incarnation of the dispute. Here, Hollman explains what makes this case different, and why in many ways it is not just a religious liberty dispute:

I think this case is pretty unique as a religious liberty case because there are so many complex issues that are interrelated here. It’s typical for BJC to weigh in when someone makes a Free Exercise claim, saying that the government has burdened their religious freedom, if we have something that we can offer to that case, that we think is helpful, or if we want to support a no establishment claim, where we believe that the government has harmed religious freedom by advancing religion or preferring one religion over the other.


Of course, we might intervene in a case where there’s a statute that protects religious freedom and we care about how it’s interpreted, cases that involve the Religious Freedom Restoration Act or the Religious Land Use and Institutionalized Persons Act. This case is different because the focus really is on the authority that the administration has in crafting exemptions. And administrative authority and rule-making is a complicated area of law … .

As Hollman and Tyler also emphasized, in this new case, more than one justice – including Chief Justice John Roberts – sounded frustrated that their previous ruling in Zubik encouraging the parties to find a compromise had not worked. Noting “I didn’t understand the problem at the time of Zubik and I’m not sure I understand it now,” Roberts asked, “Is it really the case that there is no way to resolve those differences?” He lamented that “neither side in this debate wants this accommodation to work.”

The Trump administration exemptions at issue here are “incredibly broad,” as Tyler pointed out, raising the question of whether there is in fact a contraceptive mandate left at all, since “almost any employer could claim [an exemption]… and stop offering coverage to their employees.” Whether this is simply a case in which a new administration is allowed to set new rules or a case in which the administration exceeded its authority and ran afoul of Congress’ intentions is a central question for the Supreme Court to address.

The podcast is a fantastic overview of the issues this case raises from a religious liberty perspective, including how we should think about RFRA in light of the arguments. Listen to the whole thing!

A ruling in these cases is expected by the end of June.