The Trump-Pence Administration Is Breaking The Law To Undermine the ACA Birth Control Benefit


Update: After this blog was published, the Trump-Pence administration finalized its earlier interim final rules. These final rules are just as unlawful and unconstitutional as the interim rules were, and NWLC and its partners are challenging them in court.
You may have heard that we’re suing the Trump-Pence Administration and one of the entities it teamed up with, the University of Notre Dame, over its attacks on our access to affordable birth control. But what you might not know is just how many laws the Trump-Pence administration has broken in its attempts to undermine the Affordable Care Act’s birth control benefit, the benefit that makes sure everyone has access to the birth control they need, no matter who they work for or where they go to school.
So here’s an overview of everything the Trump-Pence administration is doing wrong, translated into plain English from our lawsuit:
Remember the whole separation of church and state thing? Follow it.
By promoting a particular set of religious beliefs—aka religious beliefs that object to birth control—the Trump-Pence administration is violating our country’s dedication to the separation of church and state. And it’s not only promoting one set of religious beliefs—it’s doing so at the expense of the health and livelihoods of women and families, and demoting the religious beliefs of employees, students, and their dependents whose religious beliefs have no qualms over the use of birth control. This violates the Establishment clause of the U.S. Constitution, which enshrines the separation of church and state into law.
Stop discriminating against women.
The Trump-Pence IFRs and settlement agreement with Notre Dame deprive women of coverage of critical preventive health care—birth control—while leaving men’s health care coverage unscathed. And by making it harder to get birth control, the IFRs and settlement also prevent women from having the same educational and professional opportunities as men by impeding women’s ability to control whether and when to have children. In short: the Trump-Pence IFRs and Notre Dame’s settlement agreement discriminate against women. And that’s a violation of the Fifth Amendment’s equal protection guarantee, which guarantees equal protection of the law. Oh, and you know people who do not ascribe to the same set of religious beliefs as those that object to birth control? By endorsing religious beliefs that object to birth control, the Trump-Pence administration is also denying folks with other beliefs equal protection of the law.
Don’t get between us and our fundamental right to make decisions about reproduction.
We have a fundamental right to make personal decisions that are important to our individual dignity and autonomy without government intrusion,including the decision to use birth control. That right is protected by the Due Process Clause of the Fifth Amendment, which says: “No person shall…be deprived of life, liberty, or property, without due process of law.” What decision could be more central to our individual liberty than the decision to use birth control—the decision of whether and how to have a family, to prioritize your career or education, to control various medical conditions? Those are all incredibly intimate decisions to make about your life—and one the Trump-Pence administration is interfering with by creating rules and making deals that interfere with the ability to use birth control.
If you’re gonna make a rule…maybe try following the rules?
There’s a rule governing how you make rules because of course there is. It’s called the Administrative Procedure Act, and it’s the law that governs how executive agencies (including the ones we’re suing—the Trump-Pence Departments of Health and Human Services, Labor, and the Treasury) act, including how they create and issue rules. And it turns out: the Trump-Pence administration cut a lot of corners in issuing these rules, which themselves cut some corners of the law. Here’s what the Administrative Procedure Act requires: rules that are not authorized by statute, violate the law, or are “arbitrary and capricious” must be struck down by the courts. Compare that to the IFRs and the settlement agreement the Trump-Pence administration entered into with Notre Dame: First, the Trump-Pence IFRs and the settlement agreement are not authorized by any law, ACA or otherwise. Second, the Trump-Pence IFRs and the settlement agreement violate the law, as we already pointed out above, which means they violate the Administrative Procedure Act too. And the government’s abrupt about face on this issue after years of vigorously defending the ACA has no valid justification, making their actions completely arbitrary and capricious.
In addition to substantive requirements, the Administrative Procedure Act governs how rules are issued, and one key part of that is the “notice-and-comment rulemaking” period, which insists that new rules must be announced to the public and the public be given an opportunity to weigh in through comments before the rules become final. But there’s a reason the Administration is calling these rules IFRs, or interim final rules. And that’s because the Trump-Pence administration made the rules final immediately, leaving no time for the required notice and comment public period.
It’s a longer list than we’d hoped, but we’re not exactly surprised to see the same administration whose former HHS Secretary Tom Price said that “not one woman” has ever had trouble affording birth control show blatant disregard for the benefit that brought 62.4 million people birth control. We know that many people already have trouble getting the birth control they need, and we know that if the Trump-Pence administration gets its away, that number will only grow. We won’t let them.
Help us tell the Trump-Pence administration that entering into back-door deals selling off women’s rights isn’t ok. Email the Trump-Pence-led Departments of Health and Human Services, Labor, and the Treasury today.

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