RBG participates in Supreme Court arguments from hospital

The 87-year-old justice on Tuesday afternoon underwent nonsurgical treatment for a benign gallbladder condition and “resting comfortably” in the hospital, the court said Tuesday night.

Wednesday’s arguments were the third time the justices, due to the coronavirus, heard oral arguments by telephone.

The phone connection was glitchy as Ginsburg began her questioning, and her voice sounded weaker than normal at times. But she hit her stride later in the argument asking questions that sometimes were more like comments.

The case concerns the Affordable Care Act’s requirement that employer-provided health insurance plans cover birth control as a preventive service and pits supporters of the Obamacare provision against those who say it violates their religious and moral beliefs.

The liberal justice repeatedly pressed on the notion that women would lose their coverage even if they didn’t share the employers’ religious beliefs.

“This leaves the women to hunt for other government programs that might cover them,” she told Solicitor General Noel Francisco, who was arguing the case for the Trump administration. “And for those who are not covered by Medicaid or one of the other government programs, they can get contraceptive coverage only from paying out of their own pocket, which is exactly what Congress didn’t want to happen.”

Supreme Court hears Obamacare contraceptive mandate challenge via telephone

“You have just tossed entirely to the wind what Congress thought was essential, that is that women be provided these services with no hassles, no cost to them,” she added later. “Instead, you are shifting the employer’s religious beliefs, the cost of that, onto these employees who do not share those religious beliefs.”

Francisco replied, “There’s nothing in the ACA as this court recognized in Hobby Lobby that requires contraceptive coverage, rather it delegated to the agencies the discretion to decide whether or not to cover it in the first place.” He was referring to a 2014 Supreme Court decision regarding the mandate.

“And we think that that also includes the discretion to require that most employers provide it, but not the small number who have sincere, conscientious objections,” he added.

The court said Tuesday that Ginsburg expects to stay in the hospital for a “day or two.”

CNN’s Casey Riddle contributed to this report.

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