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Supreme Court Upholds Challenges To Access To Birth Control


We are covering two rulings from the U.S. Supreme Court this morning. First, the high court upheld a Trump administration rule related to the Affordable Care Act. The rule significantly cut back on the law's requirement that insurers provide free birth control coverage as part of almost all health care plans. Now, in another ruling, the court carved out a big exception to the nation's fair employment laws for religious schools.

And let's bring in NPR legal affairs correspondent Nina Totenberg to talk us through these two decisions. Good morning, Nina.

NINA TOTENBERG, BYLINE: Good morning, David.

GREENE: Well, let's start with this first case that deals with the Affordable Care Act, Obamacare. What was the issue here?

TOTENBERG: Well, the issue here is that under the Affordable Care Act, Obamacare, women were to get - Congress designed the law so that women were to automatically get free contraceptive coverage as part of their insurance. And the Obama administration had a carve-out - obviously, churches and synagogues were exempt from this - but it had a carve out for anybody else who had religious objections - nonprofits, hospitals, charities, universities. And the carve-out was you have to tell us or tell your insurer that you don't want to be - participate in this.

That wasn't good enough for some religious entities who challenged that provision in court. The first time it came up before the court when Justice Kennedy was still there, the court punted. Now, with Justice Kavanaugh replacing Justice Kennedy, five justices of the court - actually seven justices of the court - have ultimately said that the Trump administration can expand the exceptions so that now anybody who has a religious or moral objection - any employer - can opt out on its own of coverage, leaving it up to the women who previously had coverage to find it for themselves.

GREENE: So take us through to this other case which dealt with religion. This was dealing with the so-called ministerial exception in employment law. What was at stake here?

TOTENBERG: Well, this is a really huge case because by a 7-2 vote, the court carved out a giant exception to the nation's fair employment laws. And it said that federal employment discrimination laws do not apply to teachers at parochial, comma, religious schools whose duties include any instruction in religion at school. And so this means that, for the first time, lay teachers at religious schools are not covered by the nation's fair employment laws.

GREENE: And remind us about the facts of this case that led to this decision.

TOTENBERG: Well, this case involved two fifth-grade teachers at Catholic parochial schools in California who were fired from their jobs. One claimed age discrimination. The other was fired, she said, after telling her superior that she had breast cancer and would need some time off. And firing somebody because of a temporary disability like that is a violation of the Americans with Disabilities Act. Both schools in these cases denied the allegations but maintained that it didn't matter because the federal fair employment laws, they claimed, don't apply to their teachers because they all teach religion from a workbook 40 minutes a day in addition to the other academic subjects.

And today, the Supreme Court, as I said, by a 7-2 vote - with Justice Thomas, the court's most conservative justice, writing the opinion - the court said that the schools - because of their - the pervasive nature of religious education, teachers are covered by the so-called ministerial exception to laws that apply to the workplace in general. I said Justice Thomas wrote this. I was wrong. I'm sorry. I misspoke. Justice Samuel Alito, a Catholic who did not attend parochial schools, wrote the majority opinion. And of the five justices on the court who were educated at parochial schools, only Justice Sotomayor dissented. She was one of the two dissenters.

And I should say here that the lower courts have, for a long time, considered ministers exempt from the nation's employment laws but not other people who work at religious schools. And today, the Supreme Court carved out a giant exception.

GREENE: So expanding it to even lay teachers, as well.


GREENE: As you look at how these votes broke down, anything unusual about the coalition of justices as they came together to vote one way or another?

TOTENBERG: You know, I think probably if this were - the court has taken the ministerial exception, which I referred to before. In 2012, it said a commissioned minister who is also a teacher is not covered by the nation's employment laws. It's - the court has now moved that way further to an almost complete exemption under the law for religious employers. And I think that the 7-2 nature of this is a reflection of the fact that at least two of the court's liberals have just said, OK, this is precedent; we're following precedent.

GREENE: And what about the dissents - anything notable there in these cases?

TOTENBERG: Well, in the in the birth control case, Justice Ginsburg said that today, for the first time, the court casts totally aside countervailing rights and interests of women in its zeal to secure religious rights to the nth degree.

GREENE: NPR legal...

TOTENBERG: That was her dissent.

GREENE: NPR legal affairs correspondent Nina Totenberg talking us through two decisions from the U.S. Supreme Court this morning. Nina, thanks so much for covering this as always.

TOTENBERG: Thank you, David. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.