Update: Since the Wheaton College decision, multiple courts have issued similar troubling rulings that grant employers the ability to deny insurance coverage of birth control to their employees.
A federal district judge in Chicago recently issued a decision revealing just how far the Trump Administration is willing to go to undermine the Affordable Care Act’s birth control benefit, and the risk to women’s health and equality posed by courts that are willing to rubber stamp the Administration’s unlawful actions.
On February 22, 2018, Judge Robert M. Dow, Jr. of the Northern District of Illinois entered a permanent injunction allowing Wheaton College to withhold birth control coverage from its students and employees, even though refusing this insurance coverage blatantly violates the Affordable Care Act, the Supreme Court’s 2014 Wheaton College v. Burwell and 2016 Zubik v. Burwell orders, and controlling law of the U.S. Court of Appeals for the Seventh Circuit. The court entered the injunction after the Administration took the position that the “accommodation” developed by the government—which lets objecting employers opt out of the birth control coverage requirement but still ensures employees and students have coverage of birth control directly from the insurance company—unduly burdens Wheaton’s freedom of religion in violation of the Religious Freedom Restoration Act. This position is a complete about-face from the stance the government has taken for years and was flatly rejected (multiple times) by the Seventh Circuit in this case and in Notre Dame v. Burwell, which the Chicago federal court remains bound to follow. Wheaton College’s permanent injunction is the first of its kind since the Supreme Court’s Zubik decision, and reveals that the Administration has decided to turn its back on women and families by unlawfully refusing to enforce the ACA’s birth control benefit.
The ACA and the regulations that implement it guarantee Wheaton’s students and employees coverage of the full range of FDA-approved contraceptives with no out-of-pocket costs. In Zubik, the Supreme Court ordered the government to find an approach that ensures that women whose employers object to birth control still receive the comprehensive contraceptive coverage guaranteed to them by the ACA. In 2015, Wheaton decided to drop student health insurance entirely rather than permit its plan to include the contraceptive coverage required by law. Now, the court in Chicago has given Wheaton the green light to instead offer student and employee plans that exclude birth control coverage. The court’s short, three-page opinion not only ignores controlling law, it gives absolutely no consideration to the impact this decision will have on the students and staff who are left on their own to find and pay for birth control.
It has become clear that the Trump Administration is trying to effectively repeal the Affordable Care Act’s birth control benefit by refusing to defend it. The Administration tried to get Congress to repeal the ACA, but failed. Then the Administration tried to issue regulations to gut the ACA’s birth control benefit, but those regulations were blocked by two federal courts. So now the Administration is trying to end-run around the ACA by refusing to defend legal challenges to the birth control benefit, and through friendly judges that will defer to those challenges. However, if Wheaton College prevents students and staff from accessing birth control coverage, they will be violating the ACA and Zubik.
The ACA birth control benefit ensures that all women can use the method of contraception that is right for them, irrespective of cost. It is no wonder that the ACA birth control benefit is extraordinarily popular—including among those who identify as religious. The Wheaton College decision and the Trump Administration’s efforts to undermine the ACA birth control benefit threaten the health and educational and professional prospects of Wheaton College’s students and staff. The Administration and the courts have an obligation to enforce the ACA’s birth control benefit—which remains the law of the land—and to protect the women and families that rely on it.