Conservatives have spent the better part of a decade arguing the Affordable Care Act’s birth control benefit, which provides insurance coverage for a host of contraception without additional cost or co-pay, violates religious freedom principles. Those efforts have had mixed results. Despite two turns before the U.S. Supreme Court, dozens of lower court orders, and a handful of executive orders from President Trump, the benefit remains in place—but employers who object to it can avoid complying with it.
This week, the Roberts Court will consider taking up a case that could settle the birth control benefit’s fate once and for all.
The case is The Little Sisters of the Poor Jeanne Jugan Residence v. California. Yes, that’s right. The Sisters are at it again.
To understand how yet another case like this could end up before the Roberts Court, let’s revisit for a moment the history of the contraception mandate. Originally proposed in 2012, the birth control benefit requires most employers to include coverage of FDA-approved contraceptives without co-pay in their employer-sponsored health insurance plans. The benefit contains an exemption for religious employers and an accommodation for religiously affiliated employers. The benefit, and the exemption and accommodation, launched a wave of objections and lawsuits that has not yet receded. The first batch of those lawsuits reached the Roberts Court in 2014 in Burwell v. Hobby Lobby, in which the Court ruled that some for-profit employers could take advantage of the accommodation process.