WASHINGTON — The Supreme Court agreed on Friday to decide whether the Trump administration may allow employers to limit women’s access to free birth control under the Affordable Care Act.
The case returns the court to a key battleground in the culture wars, but one in which successive administrations have switched sides.
In the Obama years, the court heard two cases on whether religious groups could refuse to comply with regulations requiring contraceptive coverage. The new case presents the opposite question: Can the Trump administration allow all sorts of employers with religious or moral objections to contraception to opt out of the coverage requirement?
President Barack Obama signed the Affordable Care Act in March 2010. One section of the law requires coverage of preventive health services and screenings for women. In August 2011, the Obama administration required employers and insurers to provide women with coverage at no cost for all methods of contraception approved by the Food and Drug Administration.
But the Trump administration has said that requiring contraception coverage can impose a “substantial burden” on the exercise of religion by some employers. The regulations it has promulgated made good on a campaign pledge by President Trump, who has said that employers should not be “bullied by the federal government because of their religious beliefs,” and it added an exception for employers who said they had moral objections to certain forms of birth control.
The states of Pennsylvania and New Jersey challenged the rules, saying, they would have to shoulder much of the cost of providing contraceptives to women who lost coverage under the Trump administration’s rules.
In May, a unanimous three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, blocked the regulations, issuing a nationwide preliminary injunction.
That requirement that employers and insurers provide women with coverage of contraception at no cost has had a large practical effect, Judge Patty Shwartz wrote for the Third Circuit. “Cost is a significant barrier to contraceptive use and access,” she wrote. “The most effective forms of contraceptives are the most expensive. After the A.C.A. removed cost barriers, women switched to the more effective and expensive methods of contraception.”
Judge Shwartz added that expanding the Trump administration’s exceptions would have predictable consequences.
“Because the rules allow employers to opt out of providing coverage for contraceptive services,” she wrote, “some women may no longer have insurance to help offset the cost for these and other contraceptives.”
The coverage requirement, sometimes called the contraceptive mandate, has been the subject of much litigation, reaching the Supreme Court twice.
In 2014, in Burwell v. Hobby Lobby Stores, the court ruled that requiring family-owned corporations to pay for insurance coverage for contraception violated a federal law protecting religious liberty. Justice Samuel A. Alito Jr., writing for the majority, said there was a better alternative, one that the government had offered to nonprofit groups with religious objections.
That accommodation allowed the groups not to pay for coverage and to avoid fines if they informed their insurers, plan administrators or the government that they wanted an exemption. Insurance companies or the government would then pay for the coverage.
Many religious groups around the nation challenged the accommodation, saying that objecting and providing the required information would make them complicit in conduct that violated their faith. An eight-member court considered that objection in 2016 in Zubik v. Burwell but was unable to reach a definitive ruling and instead returned the case to the lower courts, instructing them to consider whether a compromise could be reached.
In urging the Supreme Court to hear its appeal, Trump v. Pennsylvania, 19-454, the administration said the new exceptions were authorized by the health care law and required by the federal Religious Freedom Restoration Act.
Lawyers for Pennsylvania and New Jersey responded that the administration lacked statutory authority to issue the regulations and had not followed proper administrative procedures.
The court agreed to also hear a second appeal, from an order of nuns who had intervened in the case, Little Sisters of the Poor v. Pennsylvania, No. 19-431. The two cases will be consolidated for a single hour of argument and will probably be heard in April.
The second case presents the separate issue of whether the nuns have standing to appeal. The Third Circuit ruled that they did not because a separate court order allowed them to decline to provide contraception coverage to their workers.
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