Blog Post

In Huge Win, Federal Court Allows Birth Control Case Against Notre Dame and Trump to Proceed – One Day Before SCOTUS Sets Its Sights on Birth Control.

NWLC and its partners Americans United for Separation of Church and State, Center for Reproductive Rights, law firms Fried Frank and Macey Swanson, and client Irish 4 Reproductive Health received a major win Thursday in our lawsuit against the Trump-Pence administration and the University of Notre Dame over their unlawful actions to deny birth control coverage to students, staff, and dependents. The federal court in Indiana agreed with most of our legal arguments challenging the Trump-Pence birth control rules and a secret settlement between the Trump-Pence administration and Notre Dame to deny birth control coverage, ruling that the case can go forward. The ruling in our case joins the chorus of decisions from other federal courts holding that the Trump-Pence administration’s birth control rules are harmful and unlawful. The decision also makes clear that this administration cannot make backroom deals behind closed doors that trade away our crucial rights.

The Indiana federal court’s decision also came just one day before the Supreme Court announced on Friday that it will hear Pennsylvania and New Jersey’s challenge to the Trump-Pence birth control rules this term—the same rules challenged in our case. Thursday’s win is particularly significant in light of this announcement – not only because it bolsters the decisions of the other lower courts, but because the decision so clearly and persuasively explains exactly why the Trump-Pence administration’s actions to deny birth control coverage are unlawful and harmful.  For all the reasons set forth in the opinion, the Supreme Court must affirm the decisions below blocking the Trump-Pence rules and ensure that all individuals receive the birth control coverage they are entitled to by law.

As a refresher, the Trump-Pence administration issued regulations attempting to gut the ACA birth control benefit by creating expansive moral and religious exemptions in October 2017. Then, just one week later, the administration entered a private deal settling ongoing litigation with Notre Dame and dozens of other entities that gave those entities a free pass to deny insurance coverage of birth control to students, staff, and dependents in their health plans.  Notre Dame students were excluded from those settlement negotiations – even though it was their right to birth control coverage that was at stake.

Although federal courts in Pennsylvania and California preliminarily blocked both the interim and final versions of the Trump-Pence birth control rules from going into effect (decisions which have been affirmed by two federal courts of appeals, and which are now heading to the Supreme Court), Notre Dame still announced that it was dropping coverage for some birth control methods altogether and charging copays for other methods, all in violation of the ACA, pursuant to their settlement with the Trump-Pence administration. NWLC and its partners obtained a copy of that settlement from a Freedom of Information Act (FOIA) request, and alongside our partners, we filed suit in June 2018 to challenge this unlawful government action on behalf of student group Irish 4 Reproductive Health and others on Notre Dame’s health plans.

The Indiana federal court on Thurs., Jan. 16, 2020, rejected attempts to dismiss the case, agreeing that our lawsuit adequately alleges that the Trump-Pence rules and the settlement agreement violate a federal statute that governs agency conduct called the Administrative Procedure Act (APA), violate the ACA, violate the Establishment Clause of the First Amendment, and violate the Supreme Court’s command in the 2016 case Zubik v. Burwell to the government to find an approach that ensures women receive the contraceptive coverage guaranteed to them by the ACA. And the court rejected arguments that the Administration’s unlawful actions could have been justified by a statute called the Religious Freedom Restoration Act (RFRA), a statute that has been increasingly misused as an excuse to justify discrimination and evade the law.

While we remain unwavering in our view that denying birth control coverage discriminates against women and others who need it, and while the court recognized there is a fundamental right to contraception, it did dismiss our claims that the rules and settlement agreement violate the Due Process Clause and Equal Protection guarantee of the Fifth Amendment of the U.S. Constitution.

Here are some highlights from Thursday’s decision:

• The court held that the rules and the settlement agreement are unlawful because they are not authorized by the ACA. The court stated: “it seems plain that the Rules and Settlement Agreement are directly contrary to the obvious intent of the Women’s Health Amendment [to the ACA]: to ensure access to contraceptive care.” at 36 (emphases added).
• The court held that the existing accommodation process did not burden religious exercise, and so the rules and settlement were not justified by RFRA. The court rejected the Defendants’ arguments that the existing process for claiming a religious accommodation burdens the religious beliefs of entities like Notre Dame in violation of RFRA. That process allows entities like Notre Dame to opt-out of the birth control benefit by simply notifying their insurance company or the government of an objection, in which case the entity no longer must provide the coverage and students and employees obtain the coverage directly from their insurance company. The court said: “I do not think the regime in place before the Rules infringed upon the religious exercise of covered employers, and I also don’t believe that RFRA creates a basis for the Rules or the Settlement Agreement.” Op. 40. The court also added: “I still don’t buy Notre Dame’s argument that checking a box on a piece of paper makes it a ‘conduit’ to providing birth control, in contravention of its religious beliefs. Op. at 39.
• Instead, the court was concerned that the rules and settlement unconstitutionally promote religion in violation of fundamental principles of separation of church and state: The Court permitted a claim that the rules and settlement violate the Establishment Clause of the First Amendment to proceed, stating “I think the allegations are sufficient at this juncture to allege that the Rules and Settlement Agreement both impermissibly advance religion.” Op. at 43.
• The court allowed a claim that the rules are procedurally unlawful to proceed, making clear that agencies may not make a sham of the public comment collection process. The court agreed that the Trump-Pence administration failed to follow the proper procedures required by the APA by issuing the interim rules first then accepting comments after. The court noted several facts – including that the agencies took “preparatory measures” to implement the interim rules while still accepting comments — that show that the agencies were “locked in a decision no matter what comments they received.” Op. at 30.
• The court allowed a claim that the rules are arbitrary and capricious to proceed. Under the APA, agency actions that are irrational or without a reasonable justification may be struck down as “arbitrary and capricious.” The court allowed this claim to proceed, explaining that the Trump-Pence administration’s new position contradicts its previous “recognition of the importance of providing women with access to contraception without cost-sharing,” and that “neither the Settlement Agreement nor the Rules provide new facts or provide meaningful analysis for the change of mind.” Op. at 32-33.

• The court held that it has authority to review the legality of the settlement agreement – and that the Defendants’ argument in support of the settlement “borders on the absurd.” Op. 26. The court first called the Defendants’ argument that the settlement could not be challenged in court “a little hard to swallow.” The court found it “especially disturbing” that the Trump-Pence administration “purported to bind future administrations, as well as future faculty, staff, and students at Notre Dame, by entering into such a broad Settlement Agreement that exempts Notre Dame from ‘the Regulations or any materially similar regulation or agency policy.’” Op. at 20-21. And the court agreed that the settlement violates the Supreme Court’s directive in the Zubik case because it “does not ensure that women get full contraceptive coverage without cost-sharing. To the contrary, it authorizes Notre Dame to give them no contraceptive coverage at all — now, and in the future.” Op. at 26.
• The court rejected the Defendants’ contradictory arguments to get out of this case: “In other words, while the Federal Defendants claim that the Settlement Agreement prevents the Court from considering the regulations, Notre Dame argues the exact opposite: that the Court should refrain from relying on the Settlement Agreement to decide the case. . . . If I were to follow both defendants’ house of mirrors approach I would end up doing precisely nothing.” Op. at 24.

This decision is a tremendous legal victory, and yet we still have a long fight ahead of us. But whatever new obstacles the Trump-Pence administration puts in our way, NWLC will never stop fighting until all people have the birth control coverage they deserve.