Bench Memos

Law & the Courts

Where Are the Women?

The Supreme Court in Washington, D.C., January 21, 2020 (Will Dunham/Reuters)

This week’s Supreme Court argument in the Little Sisters of the Poor case featured an impassioned statement by Justice Ginsburg about contraception. Several times during the argument, she claimed that the federal regulations offering religious freedom for the Little Sisters and others “tossed to the wind” congressional intent to provide women free contraception. She invoked the specter of desperate women spending scarce time and money searching for affordable contraception beyond the confines of their health insurance.

It was encouraging that Justice Ginsburg was able to join the Court’s argument by telephone from her hospital room; her voice was strong and her arguments impassioned. But she didn’t appear to understand that, even now, the states involved in the current litigation have no evidence that any woman has been unable to get contraception because of any kind of health-insurance exemption, religious or otherwise. In fact, there doesn’t seem to be any woman who has been “tossed to the wind” at all.

It is difficult to overstate this hole in the states’ argument, and in the entire nearly decade-long effort to defeat religious exemptions to the contraception mandate. The claim from Justice Ginsburg and others is that providing religious exemptions will harm women who will not get contraceptive coverage from their own employer. Yet nine years into the contraceptive mandate — and after nine years of experience with a broad range of exemptions — we have seen the opposite. Tens of millions of Americans continue to work for employers with grandfathered plans, which have been exempt from the mandate all along. Tens of millions more work for small employers who are not required by the law to provide any health insurance at all. Thousands of houses of worship and related organizations have also been exempted since the Obama administration. And thousands more organizations received the benefit of injunctions from the last round of litigation.

So where are the women Justice Ginsburg imagines? They don’t exist. During the oral argument and in their briefs, lawyers for the Little Sisters and the United States repeatedly noted the absence of any evidence that any women have been harmed; Pennsylvania has made no response. Why? Because contraceptives are widely available and accessible in our society. In fact, the Obama administration told the Supreme Court four years ago that an employee of an exempt employer can “obtain coverage through a family member’s employer, through an individual insurance policy purchased on an Exchange or directly from an insurer, or through Medicaid or another government program” (U.S. Br. at 65, Zubik v. Burwell). As the Obama administration explained, “all of those sources would include contraceptive coverage.” The Trump administration has additionally made contraception available under the federal Title X program to women unable to access it through their employer’s health plan.

These alternatives apparently work so well that the states trying the defeat the religious exemption can’t find any example of a situation in which an exemption (religious or otherwise) prevented a woman from getting coverage. Indeed, Pennsylvania told the Court that the status quo in 2018 — which included all of the exemptions described above — was great and had fully solved any problem. Pennsylvania even submitted declarations from doctors about how women were not having any difficulty with insurance for contraception. (Joint Appendix at 272 and 295, Pennsylvania v. Trump, [3d Cir.])

So no women are being “tossed to the wind” here. Instead, women who want contraception are getting it from many other available sources. This is why states can’t find a single person claiming to be harmed, despite the thousands upon thousands of employers who do not cover contraceptives for any reason — whether it be financial, political (“If you like your plan you can keep it”), or religious. Not one.

Interestingly, unlike Justices Ginsburg and Sotomayor, Justice Kagan did not sound the theme of harm to women as a result of religious exemptions for the Little Sisters of the Poor. Instead, she suggested during oral argument that the government may have made its exemption too broad, because some employers without religious objections might nevertheless switch from the so-called “accommodation” (in which employees still receive contraception on the plan) to the full exemption. But neither Justice Kagan nor any other Justice offered any reason to believe that there are employers who fit this mold. Those who object to the contraceptive mandate or its accommodation have probably already sued over it; and those who don’t are not likely to have any reason to refuse coverage at all. After all, the vast majority of employers have covered contraception in their health plans for many years. But even if these employers decided to claim an exemption, it wouldn’t matter much to women seeking contraception; as the Obama administration acknowledged, there are so many other sources available to them.

In the end, the Court heard yesterday at great length from three very able advocates — yet received not a word of evidence showing that religious exemptions will harm women. It’s time for the Court to put an end to this long-running saga by acknowledging that the contraception mandate requires a religious exemption.

Helen Alvaré is a professor of law at Antonin Scalia Law School, George Mason University, where she teaches Family Law, Law and Religion, and Property Law.

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