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December 19, 2017

Judge blocks new White House contraceptive coverage exemptions

Daily Briefing

    A federal judge on Friday issued a preliminary injunction that blocks rules issued by the Trump administration that significantly expanded exemptions available to employers that opposed the Affordable Care Act's (ACA) contraceptive coverage mandate.

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    The ACA's contraceptive coverage rules require most employers to offer contraceptive coverage to their workers. Houses of worship are exempt from the requirement, and not-for-profits that hold themselves out as religious are eligible for an accommodation that ensures they do not have to pay for or directly provide the coverage for their employees.

    The Trump administration in October released two interim final rules to expand the exemptions. One rule offers an exemption to any employer or insurer that opposes contraceptive coverage "based on its sincerely held religious beliefs." The other creates a new exemption for employers that have "moral convictions" against covering contraceptives.

    The rules were released on an interim basis but were implemented immediately. Several states, including California, Massachusetts, New York, and Pennsylvania, have challenged the new rules in federal court.

    Lawsuit details

    The ruling issued Friday pertains to Pennsylvania's lawsuit. According to Reuters, a federal judge in California heard arguments in a similar suit last week.

    Pennsylvania in the lawsuit argued the federal government violated the Administrative Procedure Act—which requires a public comment for most rules before they have the force of law—by failing to show why the rules needed to take effect immediately.  

    Further, Pennsylvania said the government did not have authority under the ACA to allow such broad exemptions.

    Pennsylvania said the exemptions would harm women in the state by causing them to have to pay more for contraception. The state also said the rules would hurt it financially by causing more women to seek contraception through programs that use state funds, such as Medicaid.

    Ruling details

    U.S. District Judge Wendy Beetlestone of the Eastern District of Pennsylvania on Friday issued a preliminary injunction that blocks enforcement of the rules nationwide, "pending the outcome of a trial on the merits."

    In the ruling, Beetlestone wrote that Pennsylvania "has demonstrated that it has met all four factors necessary to obtain a preliminary injunction." She continued, "In this case ... the Commonwealth is likely to suffer serious and irreparable harm in the absence of a preliminary injunction; the balance of the equities tips in favor of granting an injunction, and the public interest favors granting it as well.

    Beetlestone said Pennsylvania was likely to succeed on the merits of the case, citing the state's argument that the administration violated the Administrative Procedure Act.

    Regarding the administration's authority to make the rule, Beetlestone said no statutory language in the ACA allows federal agencies to establish such "sweeping exemptions" to the law's coverage requirements for preventive services. She disagreed with the administration's assertion that it's entitled to deference from the court, saying such a reading "conflicts with the statute's plain language." 

    According to Beetlestone, the exemption would enable any employer to deny contraceptive coverage not only for religious reasons, but for any "moral" reason. She wrote that it "would allow an employer with a sincerely held moral conviction that women do not have a place in the workplace to simply stop providing contraceptive coverage." It is hard to imagine a rule that "intrudes more into the lives of women," Beetlestone added.

    Beetlestone said women who lose contraceptive coverage "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." Beetlestone also agreed with the state's argument that it had grounds to file the lawsuit because women affected by the exemption would likely pursue state-funded contraceptive services—which would generate costs for the state. She also said the state has an interest in protecting the health of its residents.

    Beetlestone also rejected the Trump administration's argument that the lawsuit was premature because Pennsylvania had not identified a specific person who had lost contraceptive coverage. Beetlestone said "there is no need to wait for the ax to fall." She added that "there are reasons to believe the number [of women who will be affected by the rule] is significantly higher" than what the administration projected. Federal officials have said they expect at least 31,700 women to lose contraceptive coverage under the rules, according to Beetlestone.


    According to the Wall Street Journal, the ruling marks the beginning of what could be "a long court battle that could reach the U.S. Supreme Court."

    Lauren Ehrsam, a spokesperson for the Department of Justice, said, "We disagree with the court's ruling and are evaluating next steps. This administration is committed to defending the religious liberty of all Americans, and we look forward to doing so in court."

    Lori Windham—senior counsel at the Becket Fund, a legal organization that represents religious groups—said, "We are confident that the appeals court or the Supreme Court will overturn this ruling and ensure that the government can do the right thing and continue to protect religious groups."

    Separately, Pennsylvania Attorney General Josh Shapiro (D), who filed the lawsuit, praised the ruling. "Donald Trump broke the law to undermine women's health, and women here in Pennsylvania stood up and proved that in court," he said.

    Physicians for Reproductive Health similarly expressed support for the ruling. Anne Davis, consulting medical director for the group, in a statement said, "As doctors, we are relieved to see that a federal judge in Pennsylvania temporarily blocked the Trump administration's recent rules that would have weakened the Affordable Care Act's birth control requirement." She continued, "The rules would have left the vast majority of American women vulnerable to the whim of their employers" (Raymond, Reuters, 12/15; Pear, New York Times, 12/15; Frieden, MedPage Today, 12/15; Small, FierceHealthcare, 12/15; Hellmann/Anapol, The Hill, 12/15; Hackman, Wall Street Journal, 12/15).

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