On July 8, 2020, the United States Supreme Court (“SCOTUS”) held in a 7-2 decision that employers may exclude birth control from their health care plans if they have moral or religious oppositions to contraception. This decision upheld the Trump Administration’s November 2018 final rules which provide exceptions to the Affordable Care Act (“ACA”) mandate requiring covered employers to provide women with contraceptive coverage with no cost sharing.
By way of background, the final rules provide exemptions to the contraceptive mandate for religious organizations (such as churches) and employers with sincerely held religious beliefs, including publicly traded employers. The final rules also provide a similar “moral exemption” for employers—including non-profit and for-profit entities with no publicly traded components—with “sincerely held moral” objections to providing some or all forms of contraceptive coverage. These final rules were enjoined by lower courts prior to the appeal to SCOTUS by the Trump Administration and an organization called Little Sisters of the Poor Saints Peter and Paul Home.
SCOTUS upheld the Trump Administration’s final rules on the grounds that ACA grants government agencies the authority to promulgate religious and moral exemptions. Specifically, the Court stated that the Health Resources and Services Administration had “broad discretion to define preventative care and screenings and to create religious and moral exemptions.” Two concurring members of the Court’s Majority noted that the decision was made solely on this basis and that the final rules may be subject to a successful challenge under the “arbitrary and capricious” test for administrative rules.
Although this decision provides an expanded exemption for employers nationally, Connecticut’s exemptions are far narrower. For insured plans in Connecticut, there is a mandate to cover contraceptives and only religious employers and certain hospital and health care centers owned by religious organizations that object to such coverage are exempt. Religious employers include a church, an elementary or secondary school which is controlled or operated or principally supported by a church, as well as a church-controlled tax-exempt organization.