By Abigail Bird
The Trump Administration has slowly but surely developed a reputation for being anti-women’s rights by promoting unprogressive laws that work to reverse any steps taken towards gender equality. A clear example of the Administration’s efforts to strip women of their access to safe and affordable contraceptives is the Trump White House’s recent refusal to acknowledge a Third Circuit order which bars the enforcement of regulations which expand the Affordable Care Act’s contraceptive mandate.
Throughout Trump’s presidency there has been constant conflict between his administration’s policies and the fight for women’s rights – specifically those related to healthcare and access to birth control and abortions. In line with this continuing conflict is the split between courts ruling on the Trump White House’s efforts to exempt employers with religious objections from complying with the Affordable Care Act’s contraceptive mandate. While a three-judge panel of the Court of Appeals for the Third Circuit has enjoined the Trump Administration’s contraceptive regulations, U.S. District Court Judge Reed O’Connor (Northern District, Texas) permanently enjoined the ACA’s contraceptive mandate itself on religious freedom grounds. This battle brewing over conflicting injunctions further threatens women’s reproductive rights.
Battle of the Injunctions
President Trump’s repeated attempts to issue interim regulations on behalf of the Department of Health and Human Services and expand exemptions to the Affordable Care Act’s contraceptive coverage mandate was barred from enforcement by the Third Circuit in July. The interim regulations were described by Pennsylvania Attorney General Josh Shapiro as the Trump administration’s “disregard for women’s rights and the rule of law.”[1] A three–judge panel unanimously upheld the nationwide injunction which was originally issued by a Pennsylvania District Court in January. The interim regulations, if enforced, would allow individuals and employers with religious objections an exemption from complying with the ACA’s contraceptive mandate.
Despite this win for women’s reproductive rights, Texas U.S. District Judge Reed O’Connor issued a conflicting injunction in June 2019 barring the Department of Health and Human Services from forcing any individual person or employer to comply with the Affordable Care Act’s contraceptive coverage mandate if the person or employer has any sort of religious objection.[2] Judge O’Connor’s decision bars the ACA’s contraceptive coverage mandate “on any member of two sweeping classes: any current or future individual who objects to purchasing insurance that includes contraceptives, and any existing or future employer who objects to covering or arranging for coverage of contraceptives.” This decision created what has been described as the “battle of the injunctions, as the nationwide injunction issued and upheld in the First and Third Circuits bars the enforcement of the Trump administration’s “looser” expansion of the original contraceptive mandate, while Judge O’Connor’s ruling bars the enforcement of the ACA’s original mandate on any member of the two specified classes who oppose the rules.
Background
The contraceptive coverage mandate included in the Affordable Care Act was created under the Obama administration and provided an “exception” for those employers with a real religious objection. The original terms exempted those employers from having to pay for birth control coverage within an employee’s health insurance, but still required the employer to sign a form so the contraception could be paid for and provided to the employee by a third-party.
In November 2017, President Trump attempted to issue the interim rules, which would drastically loosen the ACA’s contraceptive mandate and allow for the exemption of any employer with any moral or religious obligation. Following the release of these modified rules on behalf of the Department of Health and Human Services, 13 U.S. states and the District of Columbia challenged the new rules in federal district court and Pennsylvania won a nationwide injunction barring the enforcement of those rules, but only in the 13 states that participated in the lawsuit.
What Happens Next?
In September 2019, in response to the conflicting injunctions, a number of Democrat Attorneys General demanded that the Trump Administration comply with the nationwide injunction in a letter to Trump officials. Written primarily in response to rules posted on the websites for both the Department of Health and Human Services and the Department of Labor, the letter accuses President Trump and his Administration of violating the Third Circuit’s nationwide injunction. Both websites note the rules, but not injunction barring enforcement. The letter further alleges that the administration is knowingly misleading the public and providing incorrect information to women about their ability to access birth control. The Trump administration refuses to acknowledge the federal court issued injunction, barring the enforcement of their expansive rules that allow for a religious belief to outweigh a women’s right to contraception, and therefore the administration is purposely attempting to misinform women about their legal rights in regards to reproductive healthcare. California Attorney General Xavier Becerra began the letter, calling out the Administration’s blatant disregard for the millions of women who were being misled by there refusal to acknowledge the nationwide injunction:
Attention Trump Administration: regardless of your stance, the law is the law and complying with a court mandate is not optional. The administration must let women know that they continue to have full access to birth control… Millions of women rely on cost-free birth control under the ACA and this Administration’s unacceptable inaction continues to misinform them about the access to which they’re entitled. The public deserves transparency and the Administration must comply with the mandate, otherwise we will see them back in court.[3]
There has been no response from the Department of Health and Human Services or the Trump Administration. But the injunction issued by Judge O’Connor creates a certain amount of uncertainty regarding the claims on behalf of the Attorney Generals.
Nevada has appealed O’Connor’s injunction, after the state was denied its request to intervene in the original suit to defend to Affordable Care Act. Nevada has also appealed the denial and the class certification in O’Connor’s decision. Massachusetts Attorney General Maura Healey similarly filed an amended complaint in July 2019, alleging that the Trump Administration violated the Affordable Care Act, and appealing the Ninth Circuit’s decision, which strayed from the Third Circuit’s decision to uphold the nationwide injunction and instead limited the injunction to the 5 states that filed the suit.
Neither the Trump Administration nor the Department of Health and Human Services has released any information regarding their intentions following the decision from Judge O’Connor, and Nevada’s appeal, which could leave the fate of millions of women who rely on cost-free birth control in the hands of the Fifth Circuit, appears extremely troublesome. Described by legal expert Tim Jost as “not a particularly friendly forum for progressive litigators,” the Fifth Circuit will present an extremely heightened bar for Nevada to meet in order to overturn O’Connor’s decision and successfully forbid the Trump Administration from taking away million’s of women’s access to affordable birth control just because of an employer’s religious views.
If the Fifth Circuit were to rule in favor of Trump’s modified rules there is a terrifying potential for Trump and his Administration to succeed in their efforts to reverse the entrenched reproductive and healthcare rights of women. These rights were achieved through decades of legal battles and challenges to countless state and federal laws that refused to acknowledge women’s rights. If the court were to allow the expansion of the ACA’s contraceptive mandate to anyone with a religious objection, they would also be establishing that religion is a justification for discrimination against women in the workplace, something our society has progressively moved away from and rejected numerous times before. Despite the First Amendment’s freedom of religion clause, the protections depicted under the Amendment do not justify using religious beliefs to completely discredit previous court decisions that protect gender equality throughout American society.
A decision in favor of the modified rules would be fatal to the progressive Women’s Rights Movement, and extremely regressive for equality throughout our society.
Abigail Bird is a 2L day student at Suffolk University Law School. She is currently employed at CFP Law Group (Calnan, Freeley & Pellegrini) working primarily on Insurance Defense for Workers’ Compensation Claims.
Footnotes:
[1] https://www.law.com/thelegalintelligencer/2019/07/15/third-circuit-upholds-nationwide-injunction-barring-trump-administrations-exceptions-to-acas-birth-control-mandate/
[2] https://www.law.com/thelegalintelligencer/2019/07/15/third-circuit-upholds-nationwide-injunction-barring-trump-administrations-exceptions-to-acas-birth-control-mandate/
[3] https://insidehealthpolicy.com/daily-news/dem-ags-say-admin-violating-injunctions-over-birth-control-rule (Full article Accessed via LexisNexis)
Other Sources:
https://www.cnn.com/2019/01/14/politics/trump-contraceptive-mandate-national-block/index.html
https://insidehealthpolicy.com/daily-news/dem-ags-say-admin-violating-injunctions-over-birth-control-rule (Full article accessed via LexisNexis).
https://insidehealthpolicy.com/daily-news/tx-district-judge-blocks-enforcement-aca%E2%80%99s-contraceptive-mandate (Full article access via LexisNexis).
https://www.nbcnews.com/news/us-news/judge-blocks-trump-birth-control-rules-13-states-d-c-n958226
https://www.law360.com/articles/1203356/mass-wants-new-ruling-in-aca-birth-control-coverage-suit
https://insidehealthpolicy.com/daily-news/nevada-appeals-ruling-against-contraceptive-mandate (Full article accessed via LexisNexis).
Disclaimer: The views expressed in this blog are the views of the author alone and do not frepresent the views of JHBL or Suffolk University Law School.