Paul Clement, speaking at the Federalist Society's 7th Annual Executive Branch Review Conference on May 8, 2019. (Photo: Diego M. Radzinschi / ALM)

During arguments Wednesday on challenges to free contraceptive health insurance under the Affordable Care Act, Chief Justice John Roberts Jr. expressed exasperation that the government and religious organizations have not resolved their differences over providing the coverage after nearly a decade, and he raised concerns about whether the Trump administration's effort to exempt employers might "sweep too broadly."

"I didn't understand the problem at the time of Zubik [v. Burwell], and I'm not sure I understand it now," said Roberts, who may hold the decisive vote in the combined cases Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania.

The chief justice, speaking to Kirkland & Ellis partner Paul Clement, representing Little Sisters, was referring to the 2016 Supreme Court case Zubik v. Burwell. Religious nonprofits, objecting to the birth control insurance coverage, challenged a government accommodation that allowed them to opt out of the coverage requirement if they notified their insurers or third party plan administrators of their objections.

In the Zubik case, the religious nonprofits claimed the notification form, subsequently used to find or provide independent coverage, made them complicit in providing the coverage. The justices did not resolve the issue; instead, they sent the cases back to the lower courts to find some compromise.

"Well, the problem is neither side in this debate wants the accommodation to work," Roberts said at one point during Wednesday's arguments. "Is it really the case that there's no way to resolve those differences?"

At the core of the latest fight are rules granting categorical exemptions from the coverage for for-profit and nonprofit employers that have religious as well as moral objections to the coverage. Pennsylvania and New Jersey challenged the exemptions, arguing that the exemptions are not authorized—as claimed by the Trump administration—by the Affordable Care Act and the Religious Freedom Restoration Act.

The states also claimed the Trump administration violated the federal Administrative Procedure Act when it issued the first interim rules without first providing notice and an opportunity for public comment. The U.S. Court of Appeals for the Third Circuit ruled in favor of the states and upheld a nationwide injunction against their enforcement.

Justice Stephen Breyer echoed Roberts' frustration with the continuing fight over birth control insurance.

"The point of the religion clauses is to try to work out accommodations," he told Clement. "I don't understand why this can't be worked out."

Breyer suggested the states brought the wrong type of challenge to the coverage exemptions. The "proper legal box," he indicated, would be a challenge to the exemptions as arbitrary and capricious because insurers, women, religious groups and taxpayers all claim some kind of injury.

Supreme Court Justice Ruth Bader Ginsburg speaks at Columbia Law School. (Photo: David Handschuh/ALM)

As Roberts, Breyer and other justices struggled with the issues in the cases, Justice Ruth Bader Ginsburg, recovering from a gall bladder condition in Johns Hopkins Hospital, made clear her view.

"At the end of the day, the government is throwing to the winds women's entitlement  to seamless, no cost to them, contraceptive coverage," Ginsburg told Clement. "This idea that the balance has to be all for Little Sister-type organizations and not at all for women seems to rub against our history of accommodation, tolerance and respect for divergent views."

U.S. Solicitor General Noel Francisco, defending the Trump administration, told Ginsburg that he disagreed with her view. "There is nothing in the ACA" that requires contraceptive coverage, he argued. The Obama administration's signature health care law delegates to the enforcing agencies the decision whether to provide it, he said.

Pennsylvania Chief Deputy Attorney General Michael Fischer argued that "the moral and religious exemptions rest on sweeping claims of authority." He said they would allow any employer to opt out entirely from providing the coverage, including for "vaguely defined moral beliefs."

The prior rules, Fisher said, struck a balance. "This case is not the result of a long-running dispute but an extension of authority inconsistent with Congress and the courts," he argued.

The Trump administration also asked the justices to examine the nationwide injunction entered by the district court against the new exemptions. Justice Clarence Thomas, who has questioned the legitimacy of those injunctions, asked the only questions about national injunctions during Wednesday's arguments.

Clement, in response to Thomas, said that type of injunction was "inappropriate" in cases—like the one before the court—where there have been years of litigation in which courts have not come to uniform decisions in the lower courts. In such cases, he said, nationwide injunctions are "not consistent with equity practice or the way the judicial system works."

The justices' arguments on Wednesday were the third day this week of telephonic arguments in the coronavirus era. Although the court had scheduled 60 minutes for the arguments, they ran over time by 40 minutes.

 

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