The defendants and plaintiffs have changed sides in the latest courtroom drama surrounding the ACA requirement that health plans cover women’s contraception. Where once the plaintiffs took exception on religious and moral grounds, it’s now states and reproductive rights groups who support the requirement that are bringing the legal challenges.
The first legal ruling in this new arrangement came a few days before Christmas, when a federal judge in Pennsylvania blocked the Trump administration’s final interim rules, issued in October, that would make it easier for organizations to opt out of birth-control coverage. The second was a few days later when a federal judge in California granted a similar injunction.
At least six other federal lawsuits challenging the new contraception rules are in the works. The National Women’s Law Center and Americans United for Separation of Church and State combined to file suit in Indiana on behalf of five women. And in Washington, D.C., the Center for Reproductive Rights has sued on behalf of the organization Medical Students for Choice and two Notre Dame students. The American Civil Liberties Union filed a challenge in the Northern District of California, the attorneys general of Washington and Massachusetts filed challenges, and a teacher in Denver brought his own lawsuit.
Meanwhile, four Democratic congresswomen have proposed a legislative fix that would repeal the interim final rules, but that will go nowhere in the Republican-dominated Congress.
So now a drawn-out legal battle looms over the rollback of the ACA contraception provision. Here’s a look at the legal issues that will come up, including whether the final interim rules comply with the Administrative Procedures Act, and two constitutional issues: the Establishment Clause of the First Amendment and the equal-protection guarantees of the Due Process clause of the Fifth Amendment.
But first, let’s lay the groundwork for the Trump administration’s action and provide some history. At the heart of these legal challenges is the ACA itself, specifically the part that established Section 2713 of the Public Health Service Act, which requires group health plans and individual policies to cover preventive services like immunizations, annual physicals—and, for women, contraceptives without cost sharing.
In 2014 in the Hobby Lobby case, the Supreme Court ruled that certain closely held for-profit corporations with religious objections to birth control can use their asserted religious beliefs to block insurance coverage of birth control under the Religious Freedom Restoration Act of 1993, known as RFRA (pronounced riff-rah). A second company, Conestoga Wood Specialties, owned by a Mennonite family, was a party to that case.
There’s a connection here with the latest interim final rules: Matt Bowman, a top lawyer at HHS, represented Conestoga Wood. The New York Times described Bowman and Katy Talento, a Trump White House domestic policy aide, as “architects of the Trump contraceptive reversal.”
Another RFRA-based challenge to the mandate that came a little later is Zubik v. Burwell. That case targeted the Obama administration’s workaround that allows certain religiously affiliated not-for-profit organizations to sidestep the mandate to cover contraception by letting insurers provide ACA-compliant coverage directly to the employee—provided the organizations notify HHS and identify their insurer or third-party administrator.
The Little Sisters of the Poor and several other religious organizations took exception to the notification requirement, claiming it is an act that triggers a practice that violates their religious beliefs. The case went to the Supreme Court, which kicked it back to the circuit courts and directed the government and plaintiffs to work out a resolution.
The Zubik case brings up another connection between the Trump administration and people who lawyered against the Obama-era contraception rules. Arguing for the Zubik plaintiffs was Noel Francisco, now Trump’s solicitor general.
The Supreme Court punt in Zubik provides cover for the Trump administration to issue the interim rules the way it did, says Travis Weber, director of the Center for Religious Liberty at the Family Research Council, a conservative Christian lobbying organization that filed briefs on behalf of plaintiffs in the Hobby Lobby and Zubik cases.
The court rulings in Pennsylvania and California, brought by the respective states (along with Delaware, Maryland, New York, and Virginia joining in), pivot on the Administrative Procedure Act, a 1946 law that sets standards for how federal agencies issue rules. Essentially, the district court rulings—both handed down by Obama appointees—say the Trump administration was too hasty in issuing the interim final rules.
The need to resolve years of litigation was good cause for the administration to bypass comments on a final rule, says Travis Weber of the Family Research Council.
“Under the Administrative Procedures Act, the government is required to provide due notice and comment period in rule making,” says Mara Gandal-Powers, senior counsel at the National Women’s Law Center (NWLC), a liberal group that pushes for abortion rights, equal pay for women, and other issues. “Both judges in Pennsylvania and California addressed that in a coherent way and really draw out how no one really had an opportunity to comment before these rules went into effect.”
But Weber says the administration is on solid legal footing because it invoked the good-cause exception of the Administrative Procedures Act. The pressing need to resolve years of ongoing litigation serves as good cause, he says.
The government has already received “hundreds of thousands” of comments in multiple rounds of rulemaking over the years, Weber maintains. “People and institutions that have wanted to comment and had the opportunity to comment, they’ve commented, and everyone knows where everyone stands,” Weber says. Planned Parenthood said more than 528,000 comments were submitted opposing the rules, but Gandal-Powers says none were reviewed before the interim final rules were made.
The draft rules were leaked in May, and the interim final rules came out in October without any warning or comment period, which, Gandal-Powers says, weakens the government’s case for using the good-cause exception. “The government clearly didn’t have good cause to do that here,” she says. The Pennsylvania and California courts agreed, and each issued a nationwide preliminary injunction against the rules.
But the interim final rules have deeper problems besides the comment period, Gandal-Powers says. NWLC and other reproductive rights groups see them as violating the intent of the ACA. “The judge in Pennsylvania addressed a little bit of how the rules are failing to comply with the statute [ACA] in a number of ways, particularly around its intent,” says Gandal-Powers. “And it is clear that the intent of the law is that family planning and specifically birth control were intended to be covered.”
The Indiana case that NWLC filed uses Establishment clause arguments, explains Gandal-Powers. One of the named plaintiffs, Alicia Baker, works at a church in Indiana. She uses an IUD for contraception and neither her nor her employer object to IUDs. But the insurance company that provides her employer’s health insurance, GuideStone Financial Resources, does, according to NWLC’s brief. “In her case—as well as broadly—someone else’s religious belief is being imposed upon her,” Gandal-Powers says.
Gandal-Powers says the equal protection guarantees of the Due Process clause are relevant because “at a real baseline level, we see these rules as discriminatory against women in a way that they are not against men.”
Counters Weber, “I think the Administrative Procedure Act argument is not strong, but I think that the Establishment clause and other arguments are even weaker. Honestly, I think that’s why the courts didn’t even take them up” in the Pennsylvania and California rulings.
Now that the tables have turned in the legal battle over the ACA birth control mandate, we should have plenty of opportunity to see who is right and whose arguments ultimately win out. At least for now.