Bending Toward Justice: Pennsylvania federal judge halts Trump’s birth control mandate rollback

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In an important victory for women and reproductive rights advocates, a federal district judge in Philadelphia today ordered the Trump Administration to cease enforcement of its new rules that significantly curtailed the birth control mandate under the Affordable Care Act. Of the eight lawsuits filed in federal courts around the country seeking to stop the new rules, this case — brought by the Commonwealth of Pennsylvania — is the first to reach a decision on the legality of the new regulatory regime.

At issue are changes the Trump Administration made to how it implements the ACA. That law requires health insurance plans to provide no-cost preventative health services. Following the unanimous advice of a panel of medical and public health experts, the Obama Administration issued rules that required health care plans to provide a full range of no-cost contraceptive services, with two exceptions: houses of worship with religious objections to contraception would be exempt, and their employees would continue to pay out-of-pocket for contraception; and religiously affiliated nonprofits and closely-held corporations were not exempt, but instead were provided an accommodation. If these employers objected on religious grounds to paying for contraceptive coverage, they could file a notice with their insurer or the Department of Health and Human Services, and the insurer would step in to pay for the contraceptive services at no cost to the organization’s employees.

Years of litigation ensued over the accommodation process. Religious organizations and businesses claimed that the mere act of filing for a waiver from the contraception rules unduly burdened their religious freedom. Federal courts around the country reached different legal conclusions and issued conflicting orders. The Supreme Court was set to resolve the dispute in Zubik v. Burwell but at the last minute punted the issue back to the Obama Administration to work out an arrangement. That never happened.

Instead, the Trump Administration sided entirely with the religious objectors’ interests. Under the new rules, not only are  nonprofits and closely-held corporations exempt from the contraception mandate if they have a religious objection to birth control, but all publicly-traded corporations are exempt as well. And these employers need not have a religious objection. Simply having a moral objection to contraception suffices.

In her 44-page opinion, Judge Wendy Beetlestone made two key legal findings. First, she held that the federal government violated the Administrative Procedure Act by skipping the “notice and comment” process; that is, the Trump Administration simply announced this substantial policy change through Interim Final Rules without first publishing draft rules, seeking public comment, responding to public comments, and promulgating final rules. Second, she ruled the accommodation process used by the Obama Administration does not place an undue burden on the employers that have a religious objection to contraception. Therefore, she wrote, the Religious Freedom Restoration Act does not compel the government to sidestep the accommodation process in favor of an exemption that all but swallows the birth control mandate.

In issuing the preliminary injunction, Judge Beetlestone found that women would suffer irreparable harm if the Trump Administration were permitted to enforce the new rules. She wrote:

[W]omen will likely forgo contraceptive services or seek out less expensive and less effective types of contraceptive services in the absence of no-cost insurance coverage. . . . Indeed, women cite cost as a significant factor in determining whether to purchase contraceptive services and which contraceptive services to use. See Adam Sonfield, What is at Stake with the Federal Contraceptive Coverage Guarantee? 20 Guttmacher Policy Review 8, 9 (2017).

The real life consequences, as amici point out, are significant: roughly 41% of unintended pregnancies in America are caused by inconsistent use of contraceptives. These problems are particularly acute in Pennsylvania, where the rate of unintended pregnancy is 53%, significantly higher than the national average. . . . The negative effects of even a short period of decreased access to no-cost contraceptive services are irreversible.

The Justice Department will undoubtedly appeal Judge Beetlestone’s decision, setting the case on a path to the Supreme Court.