On July 8, 2020 the Supreme Court issued two 7-2 decisions upholding and expanding religious carve outs that will have a wide-ranging negative impact on women’s access to reproductive health and equality in the workplace. In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania the Court deemed it acceptable for employers with religious or moral objections to exempt themselves from covering contraceptives for their employees under the Affordable Care Act (ACA) and, in Our Lady of Guadaloupe School v. Morrissey-Berru, the Court deemed it acceptable for religious schools to terminate teachers by characterizing them as “ministers” to circumvent anti-discrimination law.
While the recent Supreme Court holding in June Medical Services v. Russo, which struck down a Louisiana Targeted Restrictions on Abortion Providers (“TRAP”) law, offered a reprieve in the assault on women’s access to reproductive rights, these recent decisions are a reminder of how religious exemptions are being employed and expanded to undermine women’s equality on multiple fronts.
Prior to Little Sisters, the ACA required women’s health insurance coverage to include contraception, with a possible exemption for churches and other not-for-profit religious organizations. In 2017, the Trump administration expanded the exemptions to cover any employer, including private employers and publicly traded corporations, “with sincerely held religious beliefs…(or) moral convictions opposed to coverage of some or all contraceptive or sterilization methods.” This regulation greatly expands the scope of employers’ ability to opt-out of providing contraceptive care to female employees, thereby limiting women’s access to reproductive health care.
Both Pennsylvania and New Jersey had challenged this rule, claiming that the administration lacked the authority to make this change and that it did not abide by necessary administrative procedure regulations. The Court disagreed, claiming that the relevant executive departments had the statutory authority to promulgate these exceptions and that the departments did so properly. As a result, any employer with a “moral” objection can refuse to cover contraceptive care for its female employees. This decision could result in as many as 126,000 women losing access to birth control, and will disproportionately impact low-income women and women of color.
In Morrissey-Berru, the Supreme Court held that the First Amendment’s “ministerial exemption” immunizes religious institutions from complaints of employment discrimination if the employee qualifies as a religious “minister.” In this consolidated set of cases, a teacher at a Catholic school sued her employer under the Americans with Disabilities Act for terminating her after she requested leave to obtain breast cancer treatment, while another teacher at a separate Catholic school sued her employer under the Age Discrimination in Employment Act for not renewing her contract in order to replace her with a younger teacher.
The 9th Circuit Court of Appeals held that these teachers are not “ministers” for purposes of the ministerial exemption, because they did not have extensive formal religious training or ministerial backgrounds, lacked official credentials to be considered ministers and did not have the title of “minister” in their professional roles. However, the Supreme Court held that the teachers fell squarely within the ministerial exemption, taking a broader view and stating that courts should “take all relevant circumstances into account  to determine whether each particular position implicated the fundamental purpose of the exception.”
Under this broad interpretation, the Court held that the two teachers fell within the ministerial exception, and therefore, their discrimination claims were barred. In practice, this decision allows religious institutions to terminate a wide range of employees for any reason at all. Expanding the ministerial exception is particularly dangerous for women working at religious institutions who may no longer be protected by anti-discrimination law.
We have long fought for both women’s access to unrestricted health care and expanding laws enacted to protect women in the workplace. These recent decisions make clear that we must continue to fight for systemic solutions to the challenges facing working women. Our fight for equality, both in the forms of reproductive justice and workplace equality, are as important now as ever.
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