Following Wednesday’s Supreme Court decision allowing religious entities to opt out of covering abortion-causing drugs and contraceptives in violation of their beliefs, Democratic presidential nominee and former vice president Joe Biden pledged to overturn the contraceptive mandate exemption if elected president.
“As disappointing as the Supreme Court’s ruling is, there is a clear path to fixing it: electing a new President who will end Donald Trump’s ceaseless attempts to gut every aspect of the Affordable Care Act,” Biden said in a statement. “If I am elected, I will restore the Obama-Biden policy that existed before the Hobby Lobby ruling: providing an exemption for houses of worship and an accommodation for nonprofit organizations with religious missions.”
“This accommodation will allow women at these organizations to access contraceptive coverage, not through their employer-provided plan, but instead through their insurance company or a third-party administrator,” he added.
However, the Little Sisters of the Poor, a Catholic religious order at the center of the case, has repeatedly stated that authorizing a “third-party administrator” to provide birth control to their employees is still a violation of their beliefs and is not an acceptable compromise. The Obama-era accommodation Biden referenced allowed religious organizations to opt out of paying for birth control, yet the policy still required the organizations to indirectly facilitate a third-party way of providing the drugs to female employees.
Much like Hobby Lobby’s win at the Supreme Court in 2014, which held that the Obama administration’s contraceptive and abortifacient mandate as applied to “closely held” corporations, such as the family-owned craft store, violated the Religious Freedom Restoration Act, Wednesday’s ruling is not likely to end all legal battles for the Little Sisters of the Poor.
“We now send these cases back to the lower courts, where the Commonwealth of Pennsylvania and the State of New Jersey are all but certain to pursue their argument that the current rule is flawed on yet another ground, namely, that it is arbitrary and capricious and thus violates the [Administrative Procedure Act],” wrote Justice Samuel Alito in a concurring opinion.
Alito added: “This will prolong the legal battle in which the Little Sisters have now been engaged for seven years—even though during all this time no employee of the Little Sisters has come forward with an objection to the Little Sisters’ conduct.”
If Biden does take office, his threats could become reality. Since the executive action taken by the Trump administration to create the contraceptive mandate exemption was within its authority, a new president who is unsupportive of the exemption could reverse it.
Tony Perkins, president of the Family Research Council, warned, “Even in the courts, religious liberty hangs in the balance. For those who say elections don’t matter in such cases, they need to think again.”