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Fervor Vs Compromise At Supreme Court Birth Control Arguments

Nuns rally outside the Supreme Court in 2016 following oral arguments in seven cases dealing with religious organizations that want to ban contraceptives from their health insurance policies. The court is hearing arguments in a related case on Wednesday.
Nuns rally outside the Supreme Court in 2016 following oral arguments in seven cases dealing with religious organizations that want to ban contraceptives from their health insurance policies. The court is hearing arguments in a related case on Wednesday.

Updated at 5:11 p.m. ET

A closely divided Supreme Court heard arguments Wednesday in a case testing Trump administration rules that cut back on access to birth control under the Affordable Care Act. The difficulty of the issues was illustrated by the fact that the arguments lasted 49 minutes longer than scheduled.

The ACA sought to equalize preventive health care coverage for women and men by requiring employers to include free birth control in their plans. Automatically exempted from that provision were houses of worship, like churches and synagogues, but not religiously affiliated universities, charities, and hospitals, which employ millions of people who want access to birth control.

The Obama administration allowed these religiously affiliated entities to opt out of the birth control requirement, so alternative arrangements could be made directly with the insurer so as to guarantee "seamless coverage" of birth control for women.

The Trump administration's new rules, in contrast, would give far broader exemptions to nonprofits and some for-profit companies with religious or moral objections to birth control. No alternative arrangements would be made to guarantee coverage for employees who work for employers with religious objections to birth control. The Trump rules, until now blocked by the lower courts, were the issue before the high court Wednesday.

The most outspoken justices in Wednesday's argument were Justice Ruth Bader Ginsburg, who as a lawyer and justice has crusaded for women's rights, and Justice Samuel Alito, who as a justice has been a vociferous advocate for religious rights.

The 87-year-old Ginsburg, who was hospitalized on Tuesday for treatment of a gallbladder infection, led the charge against the Trump rules.

Participating from her hospital room, Ginsburg said "the glaring feature" of the Trump administration's new rules, is that they "toss to the winds entirely Congress's instruction that women need and shall have seamless, no-cost, comprehensive coverage." This, she said, "leaves the women to hunt for other government programs that might cover them, and for those who are not covered by Medicaid or one of the other government programs, they can get contraceptive coverage only from paying out of their own pocket, which is exactly what Congress didn't want to happen."

The Trump administration's Noel Francisco replied that that there is nothing in the ACA that requires birth control coverage. Rather, he maintained, the ACA delegated to the agencies the discretion to decide whether or not to cover birth control in the first place.

Justice Alito, for his part, used up far more than his 2 minutes of allotted time questioning, hammering Michael Fisher, the lawyer for the states challenging the Trump rules, for over seven minutes.

Referencing a decision he wrote in 2014, Alito said that "Hobby Lobby held that if a person sincerely believes that it is immoral to perform an act that has the effect of enabling another person to commit an immoral act, the federal court does not have the right to say that this person is wrong on the question of moral complicity. That is precisely the question here."

Other justices posed difficult questions as well. Justice Sonia Sotomayor asked whether a similar provision requiring all insurers to pay for free COVID-19 vaccinations would be unconstitutional because some employers object to vaccinations on religious grounds.

But in the end, several of the justices expressed frustration at the inability of the two sides to reach some compromise since the last time the court heard a challenge to the Obama-era rules four years ago. Back then, the court essentially punted, instructing the warring parties to try to come up with a compromise that would settle the issue.

Chief Justice John Roberts seemed particularly rankled by the inability of the parties to reach an accommodation: "The problem is that neither side in this debate wants the accommodation to work. ... Is it really the case that there is no way to resolve those differences?"

Justice Stephen Breyer was similarly frustrated, declaring, that "the point of the religious clauses is to try to work out accommodations because they can be some of the most difficult to resolve disputes, and they can substitute a kind of hostility for harmony. So, from that point of view, I really repeat ... I don't understand why this can't be worked out."

A ruling in the cases — Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Trump v. Pennsylvania — is expected later in the summer.

Here's a rundown of the cases so far this week and what's coming up next.

Christina Peck contributed to this report

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