Supreme Court Contraceptive Ruling’s Impact on LGBTQ Rights

Associate Justice Elena Kagan speaks at a private ceremony in the Great Hall of the Supreme Court in Washington
Though Justice Elena Kagan sided with the 7-2 majority in upholding the Trump administration’s exemption regarding contraceptive coverage under Obamacare, her concurring opinion raised doubts about whether the rule would withstand scrutiny on another ground when it goes back to the lower courts.
Reuters/ Andrew Harnik

On July 8, the US Supreme Court, in a 7-2 vote, ruled that the Trump administration had not violated the Affordable Care Act (ACA) in adopting a rule that exempts employers with religious or moral objections from providing contraceptives to women under their employee health insurance plans. The law, the majority concluded, delegates to federal agencies the discretion to decide both what services are included under its “preventive care and screenings” provisions regarding women and who must provide those services.

Only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented on this question in Little Sisters of the Poor v. Pennsylvania, though it’s important to note that this ruling has not definitively disposed of the underlying conflict here.

The details that led to this ruling are complicated, but it is worth considering its potential impact on the LGBTQ community from two vantage points.

What services must be provided still not definitively established, and that issue clearly distinct from nondiscrimination question

First, does the administration’s decision to define the scope of “preventive care and screenings” by rule-making open the door to excluding coverage for procedures of particular importance to women in the lesbian, transgender, and non-binary communities?

And, what are the potential implications for the existing and future lawsuits challenging the Trump administration’s action in withdrawing nondiscrimination protections under the ACA for LGBTQ individuals?

On that second score, it’s important to keep in mind that the questions of “delegated authority” and nondiscrimination guarantees arise under different provisions of former President Barack Obama’s signature healthcare law.

Regarding what services must be covered, the law explicitly delegates to the Health Resources and Services Administration (HRSA), an agency within the Department of Health and Human Services, discretion to determine what “preventive care and screenings” must be covered. In its July 8 ruling, the court concluded that this delegation is essentially unfettered.

Since coverage for contraception was not explicitly spelled out in the law, there is no limitation on HRSA’s discretion in either including or excluding coverage for it. That discretion, the majority concluded, also extends to defining exemptions for those with religious or moral objections, since that issue was also unaddressed in the ACA.

The court found that this broad exemptions discretion was supported by the Religious Freedom Restoration Act (RFRA), which the court applied in the notorious 2014 Hobby Lobby case in finding that at least some employers with religious objections qualify for an exemption from the contraception requirement for their healthcare plans. In Little Sisters of the Poor, however, the court found that the statutory delegation to HRSA was itself sufficient to support the Trump administration rule without relying on RFRA.

However, the court made clear that in adopting a rule such as this the administration must comply with the public notice and comment requirements of the federal Administrative Procedure Act (APA), which the states of Pennsylvania and New Jersey claimed it had not. In his opinion for the court, Justice Clarence Thomas wrote that the administration applied a method sufficient to meet the APA’s requirements.

The lower courts in this case had issued an injunction against putting the rule in place based on their conclusion that the administration lacked the authority to create the exemption and had not complied with APA’s procedures, but in doing so they never got around to answering another question under the APA: whether the substantive rule-making was “arbitrary or capricious.”

Because of that, the June 8 decision is not the end of the case, which goes back to the Court of Appeals for a determination on that question. The lower courts’ injunction now longer stands, but the HRSA rule still faces a legal challenge.

That contingency explains two divergent concurring opinions from members of the court’s majority.

Justice Samuel Alito (joined by Justice Neil Gorsuch) wrote that the rule is required by RFRA. He found that because Congress did not explicitly mandate that insurance include coverage of contraception, there was no compelling interest in such a requirement and the burden that one would impose on employers with religious or moral objections was sufficient to require the exemption the administration created.

Justice Elena Kagan (joined by Justice Stephen Breyer) — while agreeing with the majority that HRSA had discretion to adopt the rule and had followed the correct procedures in doing so — cast serious doubt on whether the rule can survive review under the “arbitrary or capricious” standard in light of the ACA’s underlying purpose, which Ginsburg, in her dissent, described as “afford[ing] gainfully employed women comprehensive, seamless, no-cost insurance coverage for preventive care protective of their health and well-being.”

On the question of the ACA’s nondiscrimination protections, there is no indication in the statute that Congress delegated to any executive branch agencies discretion to create exceptions. The law specifies that qualifying insurance plans may not discriminate on grounds prohibited by a list of other federal statutes, including the ban on discrimination because of sex in Title IX of the Education Amendments of 1972. Given the high court’s June 15 decision in Bostock v. Clayton County, which interpreted the ban on sex discrimination in Title VII of the 1964 Civil Rights Act to necessarily prohibit employment discrimination on grounds of sexual orientation or gender identity, the Trump administration has no authority to withhold protection from transgender people or even to create an exemption for employers claiming a religious or moral objection to covering their healthcare needs.

Consequently, it is unlikely that the court’s decision on the contraception rule will have any direct bearing on lawsuits already in motion that challenge the administration’s announcement it was withdrawing coverage of transgender people under the ACA.

To sign up for the Gay City News email newsletter, visit