The Supreme Court’s birth control decision is a disaster for Obamacare

The US Supreme Court issued its ruling in Little Sisters v. Pennsylvania Wednesday, holding the Affordable Care Act gives the Trump administration broad authority to grant exceptions to a federal regulation requiring employers to provide birth control coverage to their employees.

On the surface, Justice Clarence Thomas’s majority opinion appears to be focused exclusively on birth control, and it also endorses a policy that could cease to exist in less than a year.

The immediate upshot of Little Sisters is to let stand Trump administration rules allowing employers opposed to birth control to refuse to provide contraceptive coverage to their employees. If presumptive Democratic nominee Joe Biden becomes president next year, however, his administration could repeal the Trump administration’s policy and implement a new policy more favorable to contraception coverage.

But dig just one inch below the surface of Justice Thomas’s opinion, and it has deeply radical implications: Little Sisters opens up a new front in the seemingly endless judicial war on Obamacare. And it gives Republicans a new weapon it can use to attack the landmark legislation President Obama signed more than a decade ago.

Thomas’s opinion does not simply allow the Trump administration to limit many individuals’ access to birth control, it could also allow courts to dismantle a key provision of Obamacare that ensures patients receive preventive care without having to pay out-of-pocket costs. At the very least, Thomas’s decision is an existential threat to the legal requirement that health plans cover contraceptive care.

The fight over the birth control mandate, briefly explained

The Affordable Care Act requires health insurance plans to provide a minimal level of coverage. It also requires those health plans to “not impose any cost sharing requirements” for certain forms of care. Among other things, the law provides that “with respect to women,” health plans must provide “such additional preventive care and screenings … as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.”

Pursuant to this authority to lay out such “comprehensive guidelines,” the Obama-era Health Resources and Services Administration (HRSA) required health plans to provide cost-free coverage of all contraceptive methods approved by the Food and Drug Administration. This “birth control mandate” triggered immediate objections from religious groups opposed to birth control, and there have been several rounds of litigation seeking to exempt religious employers from the birth control requirement.

HRSA has also repeatedly revised its rules governing birth control to allow some employers that object to contraception to deny such coverage to their employees. The most recent rules, promulgated by the Trump administration, allows employers that are not publicly traded to refuse to provide birth control coverage if they object to birth control — either on religious grounds or due to a “sincerely held moral” conviction.

Little Sisters holds that the Trump administration acted within its discretion under the Affordable Care Act when it created this broad exception to the birth control mandate.

Obamacare “grants sweeping authority to HRSA to craft a set of standards defining the preventive care that applicable health plans must cover. But the statute is completely silent as to what those ‘comprehensive guidelines’ must contain, or how HRSA must go about creating them,” Thomas claims. Accordingly, the statute gives HRSA “virtually unbridled discretion to decide what counts as preventive care and screenings,” and equally broad discretion to “identify and create exemptions from its own Guidelines.”

The new front in the war on Obamacare

To understand why this reading of Obamacare is so significant, one must first understand Justice Neil Gorsuch’s dissenting opinion in Gundy v. United States (2019), which called for strict new limits on Congress’ power to delegate rulemaking authority to federal agencies. Though Gorsuch’s opinion in Gundy was technically a dissent, all five members of the Court’s Republican majority have indicated that they agree with that opinion. So the Gundy dissent can fairly be read as a majority opinion in waiting.

Current law permits Congress to empower federal agencies to issue binding regulations, so long as Congress “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.” In Gundy, however, Gorsuch suggested that this “intelligible principle” standard risks giving agencies “unbounded policy choices.”

Gorsuch’s explanation of what new limits he would impose on federal agencies is vague, and it’s hard to find a clear legal rule in his Gundy opinion. Nevertheless, Gorsuch writes that a federal law permitting agencies to regulate must be “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”

Which brings us back to Little Sisters. By claiming that Obamacare’s provision allowing HRSA to create the birth control mandate gives HRSA “virtually unbridled discretion,” Thomas is speaking Gorsuch’s language. And, just in case the implications of Thomas’s opinion are not clear, he makes those implications explicit.

“No party has pressed a constitutional challenge to the breadth of the delegation involved here,” Thomas writes, before citing Gundy. “The only question we face today is what the plain language of the statute authorizes.”

Thomas, in other words, is inviting future litigants to argue that the birth control mandate itself is unconstitutional. And he does so in an opinion joined by all five justices who have previously spoken favorably towards Gorsuch’s Gundy opinion. If you are a lawyer who hates Obamacare, it’s not hard to guess what you’re supposed to do next.

It’s worth noting, moreover, that the Affordable Care Act does not simply require insurers to cover women’s “preventive care and screenings” as provided for by HRSA’s guidelines.

It also requires health plans to provide cost-free coverage for certain “evidence-based items or services” as determined by “the current recommendations of the United States Preventive Services Task Force.” It requires coverage of immunizations recommended by “the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention.” And it gives HRSA authority to decide which “evidence-informed preventive care and screenings” for infants, children, and adolescents must be covered without out-of-pocket costs, among other things.

All of these provisions of the Affordable Care Act are potentially threatened by Thomas’s opinion in Little Sisters.

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