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Justice Thomas Increases Agency Power to Weaken Obamacare’s Contraceptive Mandate

WASHINGTON, DC - FEBRUARY 20: U.S. Supreme Court Associate Justice Clarence Thomas and his wife Virginia Thomas arrive for the funeral for fellow Associate Justice Antonin Scalia at the the Basilica of the National Shrine of the Immaculate Conception February 20, 2016 in Washington, DC. Scalia, who died February 13 while on a hunting trip in Texas, layed in repose in the Great Hall of the Supreme Court on Friday and his funeral service will be at the basillica today.

The U.S. Supreme Court on Wednesday ruled that employers and universities with religious or moral objections are allowed to deny their employees and students insurance that covers birth control.

Writing for a 7-2 court, Justice Clarence Thomas found that the Health Resources and Services Administration (HRSA) properly exercised its authority to carve out a religious exception to the so-called “contraceptive mandate” in the Affordable Care Act (ACA).

Litigation and history of the case stylized as Little Sisters of the Poor v. Pennsylvania has been long and tortuous. Thomas notes that lawsuits aimed at the contraceptive mandate–the result of administrative agency regulation–have “lasted nearly as long” as the mandate itself has been in the Federal Register–some nine years.

In brief, the Obama administration’s HRSA issued a series of official Guidelines, Interim Final Rules (IFRs) and final rules between 2011 and 2013 which attempted to maintain a precarious and ultimately unstable balancing act by keeping religious-based employers from blowing up the ACA’s contraceptive provisions while also satisfying reproductive rights and public health organizations.

That tightrope walk was based on the ACA’s statutory language:

A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements…with respect to women, such additional preventive care and screenings…as provided for in comprehensive guidelines supported by the [HRSA]…

The competing interest group pressure was buoyed by the Religious Freedom Restoration Act of 1993 (RFRA), a legislative attempt to correct the Supreme Court’s previous discrimination against Native American religious practices centered around peyote use.

The final fruit of all this administrative labor was a self-certification accommodation for certain religious entities which, Thomas explains, “required an eligible organization to provide a copy of the self-certification form to its health insurance issuer, which in turn would exclude contraceptive coverage from the group health plan and provide payments to beneficiaries for contraceptive services separate from the health plan.”

The Little Sisters of the Poor, a Catholic organization which takes care of the elderly infirm without regard for income, sued over the accommodation, arguing that it forces them to “take actions that directly cause others to provide contraception or appear to participate in [HRSA’s] delivery scheme.”

The Supreme Court originally took the case and consolidated it with seven others–but punted in a per curiam decision which remanded the cases to lower courts because it was largely agreed that simply contracting “for a plan that does not include coverage for some or all forms of contraception” is not an infringement of religion.

In 2017, the Trump administration issued two additional IFRs–which eventually became final rules–that broadened the exemptions to the contraceptive mandate by allowing for organizations with “sincerely held religious beliefs” or a “moral” objection to avoid “establishing, maintaining, providing, offering, or arranging [for] coverage or payments for some or all contraceptive services.”

The Commonwealth of Pennsylvania and the State of New Jersey sued–arguing that Trump’s HRSA lacked both substantive (statutory-based) and procedural (administrative agency-based) authority to issue those wide-ranging religious and moral exemptions to the mandate. A district court and an appeals court agreed–finding that the relevant statute only permits HRSA to list the sorts of care and screenings that health insurance plans “shall…provide” but does not permit HRSA to exempt organizations from covering such services.

The nation’s high court rebuked those lower court findings in a fairly straightforward manner by noting that the “asserted limitation [on HRSA’s rulemaking authority] is found nowhere in the statute.”

Thomas invoked the primacy of the text itself to guide his analysis:

On its face, then, the provision 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. The statute does not, as Congress has done in other statutes, provide an exhaustive or illustrative list of the preventive care and screenings that must be included. It does not, as Congress did elsewhere in the same section of the ACA, set forth any criteria or standards to guide HRSA’s selections. It does not, as Congress has done in other contexts, require that HRSA consult with or refrain from consulting with any party in the formulation of the Guidelines. This means that HRSA has virtually unbridled discretion to decide what counts as preventive care and screenings.

“But the same capacious grant of authority that empowers HRSA to make these determinations leaves its discretion equally unchecked in other areas, including the ability to identify and create exemptions from its own Guidelines,” the conservative justice continued.

The decision was immediately savaged by Democratic Party politicians and women’s health advocates.

“Today’s ruling is egregious — people rely on birth control for their health, for their livelihoods, and for their ability to determine their own futures,” Planned Parenthood Action Fund President and CEO Alexis McGill Johnson said in a statement.

Pennsylvania Attorney General Josh Shapiro, who was on the losing side of the ruling as a respondent, promised the legal fight was “not over” and said that additional litigation on procedural grounds was forthcoming.

“Nobody should get in between a woman and her doctor,” he said in a statement. “No employer should deny their employees medicine based only on the employer’s personal beliefs. No worker should worry about how they’ll pay for their prescriptions or whether the next doctor’s visit will be covered.”

Civil Rights attorney and administrative law expert Sasha Samberg-Champion noted that Thomas has endorsed “a rather expansive view of agency authority to undertake creative rulemaking.” The subtext here is that this also an uncharacteristic affirmation of administrative agency authority coming from Thomas–who typically disdains, intones and rules against such agency grants and uses of power.

“By its terms, the ACA leaves the Guidelines’ content to the exclusive discretion of HRSA,” Thomas notes–developing even further the above-noted expansive view of agency rulemaking authority. “Under a plain reading of the statute, then, we conclude that the ACA gives HRSA broad discretion to define preventive care and screenings and to create the religious and moral exemptions.”

An in-character dissent from Justice Ruth Bader Ginsburg essentially echoed the longstanding complaints lodged by Democratic Party faithful and the pro-choice lobby.

RELATED: RBG Says Court’s Contraception Decision Was Based on Majority’s ‘Zeal to Secure Religious Rights to the Nth Degree’

“The expansive religious exemption at issue here imposes significant burdens on women employees,” the liberal justice wrote at one point.

Thomas disputed that basic assumption but ultimately said it doesn’t even register as a matter of law.

“[E]ven assuming that the dissent is correct as an empirical matter, its concerns are more properly directed at the regulatory mechanism that Congress put in place to protect this assumed governmental interest,” the opinion notes. “As even the dissent recognizes, contraceptive coverage is mentioned nowhere in [the ACA], and no language in the statute itself even hints that Congress intended that contraception should or must be covered.”

The upshot of the decision is a windfall source of somewhat agile rulemaking prowess tossed into HRSA’s toolbox. The majority opinion was exceedingly clear on this point:

The only question we face today is what the plain language of the statute authorizes. And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions.

Samberg-Champion observed that Wednesday’s ruling could prove to be a short-lived victory for the contraceptive exemption due to the wide grant of authority signed off on by the court. What an agency gives, an agency can just as easily take away–assuming proper administrative procedures are followed.

“I look forward to seeing this rule applied throughout the Biden Administration,” he wrote.

[Image via Chip Somodevilla/Getty Images]

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