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The Supremes Weigh In

Nick Bonds, Esq.

As the Supreme Court of the United States wraps up its first full term with Associate Justice Brett M. Kavanaugh rounding out the Roberts Court’s conservative majority comes to a close, we have a number of high-profile opinions to dissect.

In addition to the customary tumult baked into an election year, this SCOTUS session deliberated while the coronavirus pandemic raged and the resurgent wave of Black Lives Matter protests swept the nation and the world. Amidst this background, the Court delivered opinions on issues as wide-ranging and politically charged as presidential powers, Native American sovereignty and land rights, faithless elector laws and the Electoral College, and Dreamers and immigration law. Of particular interest to employers and sponsors of health plans, were decisions regarding abortion rights, contraception coverage, and protections for gay and transgender employees. These latter cases will claim our spotlight for now.

In June Medical Services v. Russo, the Court struck down a Louisiana abortion law that was virtually identical to the Texas law it previously struck down in the 2016 case Whole Woman’s Health v. Hellerstedt by a margin of 5-3. The Louisiana law, like the Texas law before it, required doctors performing abortions to have admitting privileges at nearby hospitals, but had the effect of shuttering nearly every abortion provider in the state. In the 2016 case, a majority of the Court held that the law placed an undue burden on access to abortion. Chief Justice John Roberts dissented in the 2016 decision, and supporters of the Louisiana law hoped that the new lineup on the Supreme Court’s bench would deliver them a victory this term. Chief Justice Roberts disappointed them, however, relying on the legal principal of stare decisis and falling back on the precedent established by the 2016 case to rule against the nearly identical Louisiana law in a 5-4 decision.

The Court’s big case on contraception coverage was the culmination of a seven-year legal battle known as Little Sisters of the Poor v. Pennsylvania. In a 7-2 (arguably a 5-2-2) decision, the Supreme Court upheld a regulation from the Trump administration that essentially exempted employers who cite religious or moral objections from the Affordable Care Act’s contraceptive coverage mandate. Writing for the majority, consisting of the Court’s conservative bloc, Justice Clarence Thomas held that the Trump administration was acting within its authority to provide exemptions for employers with “religious and conscientious objections.” Justices Elena Kagan and Stephen Breyer agreed with their conservative colleagues that the Trump administration had the authority to create these exemptions, but they reasoned that lower courts should examine whether the decision was “arbitrary and capricious” and invalid under the Administrative Procedure Act. Justice Ruth Bader Ginsburg, joined by Justice Sonya Sotamayor, wrote a fiery dissent, arguing that the Court failed to balance religious freedom with women’s health. As a result of the Court’s ruling, employers objecting to the coverage of contraceptives on religious or conscientious grounds may decline to cover contraceptives for their employees, and the Obama-era accommodation process that would still allow employees to access contraceptives without cost-sharing, is now optional.

Lastly, in a 6-3 decisions, the Court ruled that the Civil Rights Act of 1964 protects gay and transgender workers from discrimination in the workplace. Justice Neil Gorsuch wrote in Bostock v. Clayton County that Title VII of the Civil Rights Act prohibits employers from firing their workers for being gay, bisexual, or transgender. Justice Gorsuch took pains to make clear that the Court’s decision in Bostock was specifically targeted on Title VII and no other federal laws prohibiting discrimination “on the basis of sex,” but the Court’s rationale here will almost certainly echo into other litigations debating the application of that key phrase in other areas of law. Though the issue in Bostock was the hiring and firing of LGBTQ employees, the case has implications for employer’s health and benefit offerings and is likely to be at the heart of future litigation in this arena.

All of these rulings will be making their effects felt over the coming months, both practically and politically. We are here to help and ready to answer any questions stemming from these decisions.