The Supreme Court continued oral arguments by conference call on Wednesday, hearing both Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Barr v. American Association of Political Consultants Inc.
The first case involves the Affordable Care Act’s (ACA) birth control mandate, which requires employers to provide health insurance that includes access to contraception for female employees. The government created exceptions for churches and other places of worship as well as an opt-out process for religious non-profits for whom complying with the mandate would violate their religious beliefs. The Supreme Court broadened the scope of the exception in 2014 with Burwell v. Hobby Lobby, where the Court held that closely held for-profit corporations could also opt out of the coverage, provided that their boards have sincere religious objections to providing birth control to female employees.
The Trump Administration expanded this exception further in 2017 by allowing any private employer with religious or moral objections to birth control to opt out of the mandate without notice. Pennsylvania and New Jersey challenged the new rule and the district court agreed, issuing a nationwide injunction. The Third Circuit affirmed this decision. The federal government and the Little Sisters of the Poor, a Catholic charity, argued before the Supreme Court to reverse.
Justices Ginsburg and Sotomayor signaled that the exceptions seem to violate congressional intent for women to have seamless access to contraception, while Justice Thomas questioned whether the states had a legal right to challenge the rule in the first place and Justice Alito spoke of the need to accommodate diverse religious views. Chief Justice Roberts and Justice Kagan asked whether the exception was too broad as written, and both Roberts and Justice Breyer wondered that the opposing sides in the case could not work out a reasonable solution among themselves. Justice Gorsuch focused on the expansive authority the ACA grants to government agencies, and Justice Kavanaugh seemed to find the exceptions to be reasonable. A decision in this case is expected sometime this summer.
The second case involves First Amendment issues around automated telephone calls to cell phones. In 1991, the government enacted the Telephone Consumer Protection Act (TCPA), which banned the use of automated dialers, pre-recorded calls, or artificial voice calls to numbers assigned to cell phones. The Act allowed two exceptions to robocalls, specifically for emergency announcements and in cases where an individual had given their prior consent. In an amendment passed in 2015, Congress added a third exception, if “such call is made solely to collect a debt owed to or guaranteed by the United States.” The American Association of Political Consultants, whose members would like to be able to issue robocalls to cell phones in order to solicit funds or provide political messages, filed suit claiming the law violates the First Amendment.
They argue that the law violates their free speech because it is content-based–applying the law differently depending on the content being expressed. In this case, they argue, the law allows speech related to debt collection but would ban other speech. The district court rejected that argument, but the Fourth Circuit reversed. The circuit court ruled that the appropriate solution was to sever the 2015 amendment and leave the rest of the TCPA intact. At issue is whether the debt-collection exception is severable or if the entire law needs to be struck down.
Whether the restriction at issue is content-based depends on how the Justices decide to apply the ruling in Reed v. Town of Gilbert, a 2015 Supreme Court ruling that held a law is constitutionally suspect if it includes content-based regulation, which Justice Thomas, writing for a unanimous court, said “cannot be justified without reference to the content of the regulated speech.” The plaintiffs argued that the exception for government debt-related robocalls are just such content-based distinctions.
The government argued that the debt exception was not content-based but rather based on the economic relationship between lender and borrower. The Chief Justice disagreed, saying that “I don’t see how that gets you out of the content category. You still have to look carefully at what’s being said before you can decide whether the phone call is covered by the provision or not. I think that’s the clear holding of our decision in the Reed case.” The other justices seemed to agree, leaving the question of whether the debt exception is severable or not.
The government noting that the TCPA includes a severability clause within it, so clearly congressional intent is that, if this particular amendment is unconstitutional, the rest of the statute should stand. The justices also seemed aware of the practical issues involved in this matter, with Justice Kavanaugh bringing up the popularity of the law: “If you take a peek, just a peek, at the real world here, this is one of the most popular laws on the books. Because people don’t like cell phone robocalls—that’s just common sense.” A decision is also expected this summer.