Thegovernment estimates that under the Trump administration's expandedexemptions between 70,500 and 126,400 women would lose access tocost-free birth control in one year. (Photo: David Handschuh/NYLJ,ALM)

The Trump administration had legal authority to allow privateemployers with moral or religious objections to opt out ofproviding birth control health insurance required under theAffordable Care Act, the U.S. Supreme Court ruled on Wednesday.

"We hold today that the departments had the statutory authorityto craft that [religious] exemption, as well as thecontemporaneously issued moral exemption," Justice Clarence Thomaswrote for a 7-2 majority. "We further hold that the rulespromulgating these exemptions are free from proceduraldefects."

Related: New Trump rules cut birth controlaccess

Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor,dissented.

"In accommodating claims of religious freedom, this court hastaken a balanced approach, one that does not allow the religiousbeliefs of some to overwhelm the rights and interests of others whodo not share those beliefs," Ginsburg wrote. "Today, for the firsttime, the court casts totally aside countervailing rights andinterests in its zeal to secure religious rights to the nthdegree."

Justice Elena Kagan, joined by Justice Stephen Breyer, concurredin the majority's result but not its reasoning.

The court's decision marked the third time the justices haveconsidered the contraceptive insurance requirement since thefederal law was enacted in 2010. The government estimates thatunder the Trump administration's expanded exemptions between 70,500and 126,400 women would lose access to cost-free birth control inone year.

This latest dispute centered on the administration's 2017 effortto grant categorical exemptions, sometimes called the "conscienceexemptions," to for-profit and nonprofit employers. The Obamaadministration had created narrower exemptions for churches andother houses of worship, and offered "accommodations," forreligiously-affiliated organizations, such as hospitals anduniversities, by which they would not directly contribute to thecost of the insurance.

In the combined cases Little Sisters of the Poor v. Pennsylvaniaand Trump v. Pennsylvania, the states of Pennsylvania and NewJersey challenged the Trump exemptions, arguing that they were notauthorized—as claimed by the administration—by the Affordable CareAct and the Religious Freedom Restoration Act.

The states also argued that the Trump administration violatedthe federal Administrative Procedure Act when it issued the firstinterim rules in 2017 expanding the exemptions without firstproviding notice and an opportunity for public comment. Thatviolation, they argued, made the final rules in 2018 invalid. TheU.S. Court of Appeals for the Third Circuit ruled infavor of the states and upheld a nationwide injunction againsttheir enforcement.

During telephonic arguments in May, U.S. Solicitor General NoelFrancisco, defending the Trump administration, countered, "There isnothing in the ACA" that requires contraceptive coverage. The Obamaadministration's signature health care law delegates to theenforcing agencies the decision whether to provide it, he said.

The administration, in its appeal, also had asked the justicesto weigh in on the appropriateness of nationwide injunctions. Thecourt did not reach that issue in Wednesday's ruling.

Challenging the administration's exemptions, Pennsylvania ChiefDeputy Attorney General Michael Fischer argued that "the moral andreligious exemptions rest on sweeping claims of authority." He saidthey would allow any employer to opt out entirely from providingthe coverage, including for "vaguely defined moral beliefs."

The prior rules, Fisher said, struck a balance. "This case isnot the result of a long-running dispute but an extension ofauthority inconsistent with Congress and the courts," heargued.

Chief Justice John Roberts Jr. and Justice Stephen Breyer voicedfrustration that the contraceptive insurance issue was before themonce again.

"Well, the problem is neither side in this debate wants theaccommodation to work," Roberts said at one point. "Is it reallythe case that there's no way to resolve those differences?"

The point of the Constitution's religion clauses is "to try towork out accommodations," said Breyer. "I don't understand why thiscan't be worked out."

But Ginsburg, in a comment to Kirkland & Ellis's PaulClement, representing Little Sisters, stated, "At the end of theday, the government is throwing to the winds women'sentitlement  to seamless, no cost to them, contraceptivecoverage. This idea that the balance has to be all for LittleSister-type organizations and not at all for women seems to rubagainst our history of accommodation, tolerance and respect fordivergent views."

Read more: 

• New HHS division to focus on moral, religiousobjections
• 4 takeaways as HHS relaxes rules on contraceptioncoverage at work
• ACA contraceptive coverage dispute unresolved after54,231 comments