Analysis: US Supreme Court on Exemptions Granted To Contraceptive Mandate

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The US Supreme Court recently upheld the ‘religious and moral exemptions’ granted to ‘Contraceptive Mandate’. The Affordable Care Act’s (hereinafter referred to as “ACA”) provisions require almost all employers to provide their female employees with contraceptive coverage through the group health plans. However, the Trump administration in 2017 issued new rules that granted exemption from this mandate and allowed those private employers who had ‘religious or moral objections’ to opt out of the mandate. On July 8th the US Supreme Court by a vote of 7-2, in Little Sisters of the Poor v. Pennsylvania rejected a challenge from the 2 States that had argued that the new rules violate both, the ACA and also the federal laws.

Facts of the Issue

The Commonwealth of Pennsylvania challenged this exemption clause and filed for an injunctive relief. In response to the challenge, the District Court issued preliminary injunctions against the exemptions. However, the Little Sisters challenged this order in front of the District Court which also reaffirmed the earlier decision. This is the third time when the dispute over contraceptive mandate has come before the US Supreme Court. The Health Resources and Services Administration, a division of the Department of Health and Human Services had issued guidelines to provide women with birth control in health plans free of cost.

However, the Federal Government created an exception by creating an ‘opt out’ process for churches and other places of worship from the mandate. The Court in Burwell v. Hobby Lobby, in 2014, upheld the same, but later the issue came back in the Court. This time the religious non- profit organizations challenged the Court’s decision and argued that even though there is a provision for ‘opt-out’ processes, it still created a significant amount of burden upon the exercise of religion. The Court however directed the dispute to the Lower Courts.

The present decision was arrived at after the emergence of a debate, after the Trump administration gave new standards that provided exemption for private employers that have religious or moral issues with giving their female representatives access to contraceptives. Pennsylvania and New Jersey went ahead to the Federal Court to challenge the exemption, contending that the new standards abuse both the Affordable Care Act and federal laws.

Legal Provisions Involved

The Obama-era contraceptive mandate was promulgated in August 2011. It was an outgrowth of the ACA. The mandate is in conformity with the recommendations of various health professional organizations. The Supreme Court, while considering the appeal filed by Little Sisters, observed that the ACA, gives Health Resources and Services Administration “virtually unbridled discretion to decide what counts as preventive care and screenings.”

That discretion is “equally unchecked in other areas, including the ability to identify and create exemptions from its own Guidelines.” Justice Clarence Thomas clarified, that “Since the principles making the exceptions were steady with the ACA, the Court didn’t have to say something regarding the administration’s contention that the exemptions were either required or approved by the Religious Freedom Restoration Act, a 1993 law that bars other government laws from setting a significant weight on a person’s free exercise of their religion. Having said that, Justice Thomas proceeded to say that it was suitable for the offices to consider RFRA in light of the fact that “the potential for strife between the mandate and RFRA is all around settled.”

Critical Analysis

At one point of time it was an established fact that the adults in US had the right to buy and use contraceptive medicines. But then the attention shifted towards ‘who gets to access and exercise this right?’ The action on part of the Trump administration is surprising because there seems to be a gap between the political decision and the ground reality. The basic question that arises out of the instant decision is, can the US Government drastically broaden the exemption from the contraceptive mandate in the name of religious freedom? Whether the Trump Administration followed the right procedure to broaden the exemption under the contraceptive mandate? These questions shall be expected to be answered in the future since this case does not seem to settle the dispute over the contraceptive mandate, and one can certainly expect further challenges to the instant decision.


The exemption has a huge impact on the lives of women, as it interferes with their reproductive rights. There can be a lot of disagreement on the statutory interpretation in the case. The exemption cannot be said to have a sound scientific ground. As Justice Ginsburg noted in her dissenting opinion, the religious beliefs of some people cannot outweigh the rights and interests of other people who might not share those beliefs. It therefore, raises many questions as to whether the Hon’ble Court’s decision was balanced and well thought out. However, as of now, the employers do have a clear way to exempt themselves from providing their female staff with contraception through the health care plans.

Author: Avani Jain, National Law Institute University, Bhopal.

Editor: Astha Garg, Junior Editor, Lexlife India.