Two Federal Courts Block Proposals to Restrict Access to Birth Control

By Michael Bournas-Ney

Last week, two federal judges issued back-to-back decisions which block Trump administration rules (“Final Rules”) from taking effect; these Final Rules would have made it significantly easier for employers to deny many women contraceptive coverage under the 2010 Affordable Care Act (ACA) based on either religious or moral grounds.  The ACA, in a provision known as the Women’s Health Amendment, mandates that preventive care and screenings, including contraception, be offered without cost in all group health plans.  These Final Rules would have significantly expanded the ability of employers to obtain a “religious exemption” based upon objection to contraceptive care, and would also have created a new “moral exemption” to the contraceptive care mandate.

On January 13, 2019, in the case of State of California v. Health and Human Services, U.S. District Court Judge Haywood S. Gilliam, Jr. (Northern Dist. of California) issued a decision granting an injunction to 13 states and the District of Columbia (the “Plaintiff States”) which blocks the implementation of the new Final Rules in those jurisdictions, but which denied these states’ request for a nationwide injunction. In a previous ruling, Judge Gilliam had issued an order which imposed a nationwide injunction of similar Interim Final Rules. On appeal, although the Ninth Circuit Court of Appeals had generally upheld this order, it also had ruled that the nationwide scope of the injunction was overbroad and an abuse of discretion, and therefore reduced its geographic scope to include only the states that were then plaintiffs. In his latest decision, Judge Gilliam accordingly explains that while he is ruling for the Plaintiff States, he is constrained from issuing an injunction nationwide in scope because, “[o]n the present record, the Court cannot conclude that the high threshold set by the Ninth Circuit for a nationwide injunction … has been met.” [Opinion at 44]

On January 14, 2019, the day the Final Rules were scheduled to take effect, in the case of Commonwealth of Pennsylvania and State of New Jersey v. Donald J. Trump, U.S. District Court Judge Wendy Beetlestone (Eastern District of Pennsylvania) also enjoined the Final Rules from taking effect.  However, in her decision, she imposed an injunction that is nationwide in scope. Judge Beetlestone found that the ACA clearly provides what coverage is required, i.e. all FDA-approved methods of contraception, and who must provide that coverage, i.e. any “group health plan” or “health insurance issuer offering group or individual health insurance coverage.” She therefore concluded that “the ACA prohibits [the Trump administration] from exempting entities from providing such coverage” and that the Final Rules violate the ACA. [Opinion at 35-36, 43]

The Trump administration also argued that the Religious Freedom Restoration Act (RFRA) independently enabled it to issue the Final Rules. Enacted in 1993, RFRA provides that, in the event a government action imposes a substantial burden on religion, then that government action must be struck down unless it is (a) the least restrictive means of (b) furthering a compelling interest. The Trump administration argued that RFRA thus “required” the exemptions set forth in the Final Rules. However, Judge Beetlestone found “RFRA…commits to the courts the task of determining whether generally applicable laws violate a person’s religious exercise,” that “it is the courts, not the [Defendant Agencies], that determine RFRA’s reach. And the [Final Rules] go far beyond RFRA’s command.” [Opinion at 44, 42]

Thus, for now, the Final Rules remain on hold throughout the country. But since these are both district court opinions, there will probably be numerous legal developments ahead since it is likely the cases will be appealed to the circuit court level and possibly on from there to the Supreme Court.