Update: On December 20, 2019, NWLC, NAPAWF, NLIRH, SisterLove, and 34 additional organizations filed their amicus brief in support of Nevada and the birth control benefit to the U.S. Court of Appeals for the Fifth Circuit.
Behind closed doors, our reproductive rights are being traded away. We couldn’t write fiction this brash. So, sit back and let us recount the very real story about the case that is quietly gutting the Affordable Care Act’s birth control benefit.
Chapter 1 – The Judge
Article III of the U.S. Constitution vests federal judges with power to hear “cases” and “controversies.” One such judge on the U.S. District Court for the Northern District of Texas, Judge Reed O’Connor, has garnered national media attention over the past several years for his activist decisions. In 2016, he ruled that federal law does not protect transgender students who are barred from single-sex school bathrooms. On New Year’s Eve 2016, he ruled that the Affordable Care Act (ACA) couldn’t protect transgender people and people who need abortions from being turned away when they seek care. In 2018, he declared the entire ACA unconstitutional. Most recently, in DeOtte v. Azar, a case with sweeping implications for access to birth control that has received relatively little media attention, Judge O’Connor has issued a decision that guts the ACA birth control benefit – the requirement that health plans cover all FDA-approved methods of birth control without out-of-pocket costs.
Chapter 2 – The Law
Shocking to almost no one, the Affordable Care Act’s benefit is popular and effective. As of 2018, nearly 62.8 million women have coverage of birth control without out-of-pocket costs thanks to the benefit. It is the job of the federal government to enforce this birth control benefit, but the Trump-Pence administration is aggressively taking the opposite position.
Chapter 3 – The Trump-Pence Administration
Instead of enforcing this popular and effective law, the Trump-Pence administration has attempted to do everything it can think of to undermine it. The administration issued two rules that would allow virtually any employer or university claiming a religious or moral exemption to deny insurance coverage of birth control to their employees and students. Seeing the federal government abdicate its role to defend the benefit, coalitions of states and organizations, including NWLC, sued the federal government, and several states secured preliminary injunctions blocking these rules nationwide. On July 12, 2019, a federal appeals court affirmed the nationwide preliminary injunction obtained by Pennsylvania and New Jersey, and so these harmful rules will remain blocked as litigation continues.
All the while, the administration quietly entered into settlement agreements exempting entities like the University of Notre Dame and dozens of others from having to comply with either the ACA birth control benefit or any similar future law requiring coverage of birth control, a maneuver challenged by NWLC in court alongside its partners Americans United for Separation of Church and State, the Center for Reproductive Rights, and firms Fried Frank and Macey Swanson.
Chapter 4 – The Case of DeOtte v. Azar
It is against this backdrop that plaintiffs in DeOtte v. Azar went to Judge O’Connor to complain that they had to comply with the birth control benefit because of the injunctions secured by the states. They asked if they could bring a class action – a legal mechanism to represent the interest of many people suffering the same grievance. The DeOtte plaintiffs asked to bring a class action to attack the birth control benefit, and Judge O’Connor granted their request to form a class. It’s worth noting that the Supreme Court did not allow the women workers of WalMart to proceed as a class with their unequal pay–related sex discrimination case, but here, four individuals and two corporations were permitted to sue the government to trade away the rights of current and future employees all over the country…but I digress.
Now representing a class, the plaintiffs asked Judge O’Connor to issue a permanent injunction allowing all current and future employers and individuals nationwide with religious objections to the birth control benefit to refuse to comply with it. The government agreed with the plaintiffs’ legal argument attacking the birth control benefit. With no apparent controversy between the plaintiffs and the government, Judge O’Connor fast-tracked the case and granted plaintiffs’ request for this permanent, nationwide injunction.
Chapter 5 – The Last Defenders
The real, underlying controversy is not a ‘disagreement’ between the parties—it is a disagreement between the parties and the people across the country whose birth control coverage is at stake.
Someone had to defend the birth control benefit, and on Friday, May 24, 2019, the State of Nevada asked to step in to defend this vital federal benefit by filing a motion to intervene – which is a request to become a party to the lawsuit. The same day, National Women’s Law Center, along with its partners the National Latina Institute for Reproductive Health, the National Asian Pacific American Women’s Forum, SisterLove, Inc., counsel Lowenstein Sandler, and 25 other organizations filed a friend-of-the-court brief in support of Nevada, as did several other organizations and health providers. We emphasized the importance of Nevada’s involvement in this case and the devastating impact a nationwide injunction would have on the health, economic security, autonomy, and equality of people nationwide, and particularly people of color, young people, LGBTQ+ people, immigrants, people with limited incomes, survivors of sexual and interpersonal violence, and others who face multiple and intersecting forms of discrimination.
Judge O’Connor issued the permanent, nationwide injunction without ever ruling on Nevada’s motion, thereby ignoring the one voice seeking to represent the interest of individuals nationwide who rely on the birth control benefit. Nevada filed a notice to appeal, for the mere opportunity to show up in court and say hands off our birth control.