Ninth Circuit Upholds Block on Expanded Exemptions for Birth Control Coverage

by Nicholas Iovino, Court House News, October 22, 2019

SAN FRANCSICO (CN) – Dealing another setback to the Trump administration’s agenda, the Ninth Circuit on Tuesday upheld an injunction barring enforcement of rules that let employers opt out of covering birth control on religious and moral grounds.

Enacted in October 2017, the two rules exempt employers “with sincerely held religious beliefs” from providing contraceptive coverage as required by the 2011 Affordable Care Act, which mandates all women have access to preventative care.

U.S. District Judge Haywood Gilliam issued a preliminary injunction on Jan. 13, blocking the rules from taking effect in 13 states and the District of Columbia. One day later, another federal judge in Philadelphia issued a nationwide injunction.

In its opinion Tuesday, the majority of a three-judge Ninth Circuit panel rejected the Trump administration’s argument that because U.S. Health and Human Services previously exempted churches from the contraceptive mandate in 2013, its new rules exempting all employers with moral or religious objections should be allowed.

“The existence of one exemption does not necessarily justify the authority to issue a different exemption or any other exemption that the agencies decide,” Senior U.S. Circuit Judge J. Clifford Wallace, a Richard Nixon appointee, wrote for the panel.

Wallace also insisted that the Religious Freedom Restoration Act (RFRA) of 1993 did not clearly authorize executive agencies to make regulations aimed at protecting religious freedoms.

“Instead, RFRA appears to charge the courts with determining violations,” Wallace wrote.

Wallace, a 47-year veteran of the court, found the Trump administration’s exemptions contradict the congressional intent of the Affordable Care Act – to ensure “all women have access to preventative care.”

The senior circuit judge wrote that Congress already sought to balance the competing interests of employers with religious objections and women in need of preventative care when it passed the Affordable Care Act in 2011.

“The agencies cannot reverse that legislatively chosen balance through rulemaking,” he wrote.

The panel also found states would suffer irreparable harm without an injunction because they would incur extra costs providing birth control to women who are denied coverage. U.S. Health and Human Services estimated that between 31,700 and 120,000 women nationwide would lose some coverage as a result of the new regulations.

U.S. Circuit Judge Susan Graber, a Bill Clinton appointee, joined Wallace’s opinion.

Dissenting, Senior U.S. Circuit Judge Andrew Kleinfeld argued the panel should have dismissed the case because the Third Circuit’s July 12 decision to uphold a nationwide injunction against these same rules made the case moot.

“Nothing we say or do in today’s decision has any practical effect on the challenged regulation,” Kleinfeld wrote. “We are racing to shut a door that has already been shut.”

The George H.W. Bush appointee further insisted that the contraceptive mandate was a regulation invented by the Obama administration, not a requirement of the Affordable Care Act.

“Congress delegated to the executive branch the entire matter of ‘such additional preventive care and screenings’ as the executive agencies might choose to provide for,” Kleinfeld wrote.

Plaintiffs who sued to block the rules include the states of California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Minnesota, New York, North Carolina, Rhode Island, Vermont, Virginia, Washington state and the District of Columbia.

California Attorney General Xavier Becerra praised the decision in a statement Tuesday.

“Once again, our courts have blocked the Trump administration’s unlawful attempt to trample on women’s rights,” Becerra said.

A Health and Human Services spokesperson declined to comment.