Judge Blocks Employer Exemption From Birth-Control Rules in in 14 States

by Helen Christophi, Court House News, January 14, 2019

OAKLAND, Calif. (CN) — A federal judge in Oakland on Sunday blocked new Trump administration rules from taking effect in 14 states allowing employers to opt out of covering birth control on religious and moral grounds.

In a 45-page ruling handed down hours before the new, final rules were to take effect Monday, U.S. District Judge Haywood Gilliam Jr. granted the states’ motion for a preliminary injunction, finding they were likely to succeed on procedural claims that the rules contravene the Affordable Care Act, and were likely to suffer “irreparable” economic harm absent an injunction, as women turn to state programs for affordable contraception and health care services associated with unintended pregnancies.

But Gilliam stopped short of granting the states’ request for a nationwide injunction, limiting it to just those states litigating the case.

The decision comes after a divided Ninth Circuit last month rebuked Gilliam for “abuse of discretion” by blocking interim versions of the rules in December 2017 in all 50 states. Holding 2-1 that an injunction limited to the five states suing at the time “would provide complete relief,” the panel vacated the injunction for the remaining states.

Gilliam cited this finding in his order Sunday, saying the plaintiffs failed to marshal evidence sufficient to justify a nationwide injunction.

“The court fully recognizes that limiting the scope of this injunction to the plaintiff states means that women in other states are at risk of losing access to cost-free contraceptives when the final rules take effect,” Gilliam wrote. But “(o)n the present record, the court cannot conclude that the high threshold set by the Ninth Circuit for a nationwide injunction, in light of the concerns articulated in the California opinion, has been met.”

California Attorney General Xavier Becerra did not address the scope of Gilliam’s injunction in a statement Sunday. But he celebrated the decision as a victory over the Trump administration’s attempt “to trample on women’s access to basic reproductive care.”

“The law couldn’t be clearer — employers have no business interfering in women’s healthcare decisions,” said Becerra, whose office is spearheading the states’ lawsuit. “Our coalition will continue to fight to ensure women have access to the reproductive healthcare they are guaranteed under the law.”

The Affordable Care Act of 2010 requires employers to cover contraception under their health plans, with no copayment. Religious institutions are exempt from the mandate, and nonprofits were allowed to opt out via an accommodation by which an employer certifies its objection to the mandate to the federal government. The government is consequently tasked with confirming that insurers provide separate coverage.

But the Trump administration issued new interim exemption rules in October 2017 allowing any employer or health insurer with religious or moral objections to birth control to opt out of the requirement. Under these rules, exempted entities no longer need to certify their objection or otherwise notify the government of their decision to stop providing coverage. California and its co-plaintiffs say this will create disastrous interruptions in coverage for affected women.

Gilliam accepted this argument Sunday, finding the states had shown the rules are likely to result in a decrease in the use of “effective contraception, thus leading to unintended pregnancies.”

“Some of the most effective contraceptive methods are also among the most expensive,” Gilliam said. “For example, long-acting reversible contraceptives are among the most effective methods, but may cost a woman over $1,000. Women who lose their entitlement to cost-free contraceptives are less likely to use an effective method, or any method at all.”

He rejected key arguments proffered by the administration against the states’ Administrative Procedure Act claim, that the rules “cannot be reconciled with the text and purpose of the ACA — which seeks to promote access to women’s health care, not limit it.”

The rejected arguments include the assertion that the ACA’s contraceptive mandate is not actually a mandate, but a policy determination subject to agency discretion — a scenario Gilliam rejected as “conferring unbridled discretion on the agencies to exempt anyone they see fit from providing coverage” — and that the Religious Freedom Restoration Act (RFRA) requires the government to provide qualifying entities with a religious exemption instead of the accommodation they get now.

The administration and the Little Sisters of the Poor, a religious nonprofit run by an order of Catholic nuns that intervened in the case in late 2017, say the accommodation burdens objectors’ exercise of religion by requiring them to notify the government of their decision to opt out of the contraceptive mandate. They say notification makes them complicit in the provision of birth control because it guarantees birth control is still covered for employees through separate coverage.

Noting that eight federal appellate courts have ruled that the accommodation does not in fact burden an objectors’ exercise of religion, Gilliam concluded that the states will likely prevail on their claim.

“On balance, because the court has concluded that plaintiffs are likely to show that the final rules are not mandated by RFRA, and that the existing accommodation does not substantially burden religious exercise, it finds that maintaining the status quo for the time being, pending a prompt resolution of the merits of plaintiffs’ claims, is warranted based on the record presented,” Gilliam said.

The injunction covers California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Minnesota, New York, North Carolina, Rhode Island, Vermont, Virginia, Washington State and the District of Columbia. A Jan. 7 motion by Oregon to join the suit is pending.

The Little Sisters appealed Gilliam’s injunction to the Ninth Circuit late Sunday evening, according to a brief filed by their attorney Mark Rienzi.

Rienzi, who practices with The Becket Fund for Religious Liberty in Washington, D.C., could not be reached for comment Sunday.

Due to the government shutdown, the U.S. Justice Department also could not be reached for comment. 

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News Release from Hawaii AG 01/14/2019: Hawaii Secures Injunction Halting Trump Administration’s Attempt to Limit Birth Control Access