Justice Elena Kagan at Fortune’s Most Powerful Women summit in October 2013.
However, Justice Kagan’s opinion offered an alternative legal route to challenge the Trump administration’s attack on birth control coverage: She noted that the lower federal court had not reached a decision on an additional legal question about the extremely broad exemptions granted by the Trump administration—namely, that the exemptions are “arbitrary and capricious.”
Justice Kagan then set forth a clearly reasoned argument for why the Trump administration’s broad contraceptive carve-out could contravene the arbitrary and capricious legal standard. Thus, challengers could attempt to block implementation of Trump’s attack on birth control in the lower federal court based on Justice Kagan’s opinion.
Furthermore, Ginsburg noted that the ACA has especially helped women in lower-income groups access health care more broadly and preventive services such as contraception in particular. The Trump administration’s exemptions impose significant burdens on those women, since they will now either struggle to find coverage for contraception elsewhere or be forced to pay out of pocket.
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