HEALTH CARE BRIEFING: Birth Control Ruling Draws House Response

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The U.S. Supreme Court struck two blows in favor of religious rights, including a decision that upholds Trump administration rules providing employers a broad right to refuse to offer birth control through their health coverage.

Both decisions were 7-2, as Justices Stephen Breyer and Elena Kagan joined the high court’s five conservatives in the majority.

The first decision, which stems from an Affordable Care Act requirement that health plans include free coverage, permits President Donald Trump’s administration to expand a narrower religious exemption that was offered under President Barack Obama. Critics say the new exemption could leave tens of thousands of women in the country without easy access to birth control.

The ruling focused more on federal administrative law than religion. Writing for the majority, Justice Clarence Thomas argued that the Affordable Care Act gives administrators “broad discretion” to carve out religious and moral exemptions. The law itself doesn’t explicitly mention birth control, instead requiring cost-free “preventive care and screenings” and leaving it to a federal agency to determine what’s included.

Dissenting Justice Ruth Bader Ginsburg pointed to a government estimate that between 70,500 and 126,400 women in the U.S. would immediately lose access to free contraception.

“This court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets,” Ginsburg wrote.

Immediately following the court’s decision, Democratic Reps. Diana DeGette (Colo.), Judy Chu (Calif.), Barbara Lee (Calif.) and Lois Frankel (Fla.) announced plans to introduce legislation to block the exemptions from taking effect. The measure will be filed when the House convenes for its pro forma session today, DeGette’s office said in a statement.

The Trump administration issued its rules in November of 2018. The new policy expands the types of employers who can claim religious exemptions to include publicly traded companies for the first time, and also applies it to universities in their student health plans. Trump’s rules also allow opt-outs on moral grounds. Read more from Greg Stohr.

The court dodged a critical question in handing Trump the victory: whether the Religious Freedom Restoration Act compelled the government to adopt broad exemptions to the requirement that employers provide health plans that pay in full for workers’ birth control. The justices “punted on the RFRA issue once again,” Joshua Blackman, who teaches constitutional law at South Texas College of Law, told Bloomberg Law. Read more from Mary Anne Pazanowski.
Separately, the Trump administration told a federal appeals court that its rule aimed at shielding health workers who object to performing services on religious grounds from discrimination is valid and should be reinstated. The U.S. Court of Appeals for the Ninth Circuit filed the opening brief from HHS Secretary Alex Azar in a consolidated appeal from multiple rulings vacating the health worker conscience rule. Read more from Mary Anne Pazanowski.

In the second decision, justices gave religious organizations a bigger exemption from discrimination lawsuits, throwing out bias claims filed by two teachers who were fired from their jobs at Catholic grade schools in California. The decision comes weeks after the Supreme Court ruled gay and transgender workers can sue for job discrimination under federal law. Read more from Stohr.

Happening on the Hill

Republicans Defy Leaders’ Pleas to Wear Masks: Pleas by Republican leaders in Congress that Americans wear face coverings in public aren’t dampening the determination of some GOP lawmakers to go barefaced in the Capitol. “I’ll wear it if my boss tells me to,” Rep. Mark Green (R-Tenn.) said last month. “When I had cancer, I didn’t ask people to wear masks. I asked them to use hand sanitizer,” said Green, who was an Army flight surgeon during the Iraq war. The lawmaker said he wears masks only on airplanes or if people get very close.

That’s not the advice of Senate Majority Leader Mitch McConnell (R-Ky.) and House Minority Leader Kevin McCarthy (R-Calif.), who have both urged their fellow citizens to cover their faces. So has House Republican Conference Chair Liz Cheney (R-Wyo.), whose post of a photo of her father, former Vice President Dick Cheney, wearing a face mask went viral. Jim Rowley has more.

Appropriations Markup: The House Appropriations Committee is scheduled to mark up the fiscal 2021 Agriculture-FDA appropriations bill today.

Consumers & Virus Risk: The House Energy and Commerce Subcommittee on Consumer Protection and Commerce scheduled a hearing today on consumers and increased risk during the Covid-19 pandemic.

Letters & Legislation:

House Oversight and Reform Chairwoman Carolyn Maloney (D-N.Y.) unveiled a bill that seeks to promote the domestic fashion industry in efforts to manufacture personal protective equipment such as face masks. The measure seeks to “establish domestic supply chain incentives that put Americans to work building the skills and materials we need,” she said in a statement. Read the bill text here.

Pandemic Response

U.S. Weighs Early Covid-19 Vaccine Access for Minorities: The Centers for Disease Control and Prevention and an advisory committee of outside health experts in April began working on a ranking system for a coronavirus vaccine roll-out in the U.S., the New York Times reports, citing a preliminary plan. Any approved vaccines would be offered to vital medical and national security officials first, and then to other essential workers and those considered at high risk. Agency officials and advisers are considering putting Black and Latino people ahead of others in the population. Black and Latino people have become infected with the virus at three times the rate of whites, and have died nearly twice as frequently, NYT says.

Trump Threatens School Funds if They Don’t Open: President Donald Trump intensified his pressure campaign to open up schools, attacking the Centers for Disease Control and Prevention over its guidelines he said were too impractical.

Trump on Twitter yesterday said he will meet with the CDC about the guidance, and threatened to withhold federal funding to schools that did not fully reopen, as he urged schools to begin again this fall with in-person classes despite a rise in coronavirus cases across the country. Opening schools would enable parents to work, a key piece of Trump’s push to accelerate the U.S.’s return to normalcy.

Meanwhile, Vice President Mike Pence held a briefing with health officials at the Department of Education, saying: “It’s time for us to get our kids back to school.” Pence, though, stopped short of offering a detailed plan of how to do so as the outbreak worsens. At the same event, Secretary Betsy DeVos pointed to plans in Fairfax County, Va., for returning students for either no days or two days a week, calling them “false paradigms.” Josh Wingrove has more.

Children whose parents have avoided taking them in for annual wellness checkups will benefit by returning to the classroom, U.S. Surgeon General Jerome Adams said. “We have almost five million children that are behind on vaccinations” because “their parents are scared to take them into the doctors for their wellness visits,” he said on a panel hosted by America’s Physician Groups. “If you’re not going to school, no one’s checking to make sure you’re getting that vaccination,” he said. Ayanna Alexander has more.
Opening up campuses safely will require over $116 billion in new spending to cut down class sizes, clean school buildings, and buy protective gear for employees, according to an analysis released last month by the American Federation of Teachers, the second-largest teachers’ union in the country. Senate Minority Leader Chuck Schumer (D-N.Y.), and Sen. Patty Murray (D-Wash.), the ranking member on the Senate Health, Education, Labor, and Pensions Committee, have proposed a bill that would provide $430 billion in aid for education, including $175 billion for K-12 schools, Andrew Kreighbaum reports.

U.S. Buys $594 Million in Covid-19 Protective Gear: The Trump administration has bought $594 million in personal protective equipment since June, in the first complete look at how the Department of Defense has replenished the Strategic National Stockpile since it first took on that responsibility. The Defense Logistics Agency bought 4.6 billion gloves, 6.7 million goggles, 4.8 million face shields and at least 21 million surgical face masks for the stockpile, a spokesman said. Shira Stein has more.

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What Else to Know Today

Drugmakers Reserve Seats for Patent Attorneys: Pharmaceutical companies intent on finding the next blockbuster drug increasingly view patent litigators as a secret weapon at the bargaining table, proving their value to an industry built on intellectual property. The trend of IP litigators as strategic business advisers has grown over the last decade, as brand-name drug firms look to them for help in determining what types of deals to strike—acquire vs. partner vs. license—in a way that best dovetails with the pharmaceutical company’s own research and broader business interests. Read more from Valerie Bauman.

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To contact the reporter on this story: Brandon Lee in Washington at blee@bgov.com

To contact the editors responsible for this story: Giuseppe Macri at gmacri@bgov.com; Zachary Sherwood at zsherwood@bgov.com; Michaela Ross at mross@bgov.com

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