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The Trump-Pence Administration Is Making Back-Room Deals That Take Away Our Birth Control Coverage – So We’re Going to Court

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

For months, the Trump-Pence administration has been entering into secret, illegal settlement agreements with scores of companies and universities representing tens of thousands of people. Why? To allow those employers and universities to stop covering birth control for their employees, students, and dependents. By taking away insurance coverage of birth control, the Trump-Pence administration and the companies and universities it’s been teaming up with are causing untold harm to countless people and their families who rely on birth control to decide if, when, or how to get pregnant, to achieve their educational and professional goals, and to manage medical conditions. And it’s against the law.

So we’re taking them to court (again!), alongside our partners at Americans United for Separation of Church and State and the Center for Reproductive Rights.  We filed a lawsuit (Irish 4 Reproductive Health vs. U.S. Department of Health and Human Services) against both the Trump-Pence administration and the University of Notre Dame, which entered into one of these settlements with the Administration.  And we have a message for them: We will expose your illegal, back-room attempts to take our rights away and we won’t stop fighting until everyone (because it’s not just women who use birth control!) has the birth control coverage they need.

Here’s how we got here.

Back in October of 2017, the Trump-Pence administration suddenly issued something called an “Interim Final Rule”—it issued two, actually, which we’ll refer to as Trump’s IFRs or rules for short—that essentially allow nearly any employer, university, or health insurance company to stop covering birth control—for just about any reason. That’s right: basically any company or university, and any reason. So across the country, the rules would allow entities to simply drop birth control coverage, subverting the legal requirement in the Affordable Care Act that insurance plans provide coverage of all FDA-approved methods of birth control for women, without cost-sharing (commonly known as the birth control benefit).

Why does that matter? Because the ACA’s birth control benefit is working. And it was enacted for a reason: to help individuals get the birth control they need, no matter what income bracket they fall into or what school they go to. The birth control benefit is doing just that, making a real difference in people’s lives, from their health to their ability to decide whether and when to start a family to their economic security. By undermining the ACA birth control benefit, the Trump-Pence administration is undermining people’s health and livelihoods.

But even before the Trump-Pence administration came along, not everyone was happy with the birth control benefit. Some for-profit employers (remember Hobby Lobby?) challenged the requirement, and the Supreme Court in its terrible 2014 decision ruled that certain for-profit employers like Hobby Lobby did not have to comply with it. Some religiously-affiliated non-profit organizations were also unhappy—but for a slightly different reason. They had already been given an “accommodation” by the government. Under the accommodation, objecting employers and universities just have to tell the government or their insurance company that they are opting out of the ACA birth control benefit and that’s it—they are completely relieved of any obligation to provide insurance coverage of birth control. Instead, their employees and students get the coverage directly from the insurance company.  The accommodation ensures that people covered by health plans at objecting employers and universities have coverage of the full range of FDA-approved birth control methods guaranteed to them by the ACA, while also relieving objecting employers and universities of any obligation to provide the coverage.  And after the Supreme Court’s Hobby Lobby decision, those for-profits used the accommodation too.

But these non-profits challenged the accommodation itself, saying that simply having to tell the government about their intention to opt out of the birth control benefit “substantially burdened” their religious freedom. Eight of the nine federal courts that considered this argument flatly rejected it. The Supreme Court, meanwhile, took some of these cases but did not resolve the issue. In the 2016 case Zubik v. Burwell, the Court sent the cases back down, ordering them to be resolved in a way that ensured people covered by objecting employers’ and universities’ health plans would still have the birth control coverage to which they were entitled by the ACA.

Then the Trump-Pence administration came along.

The Trump IFRs turned what was a narrow exemption into a gulf. Under the IFRs, pretty much everyone is exempted, for religious or “moral” reasons. As for the accommodation? It’s now optional, leaving employees and students without the birth control coverage they had been guaranteed by law.

Under the IFRs, the “exemptions” were no longer exemptions—they were the rule. Which is why we sued as soon as the IFRs came out, along with many others. Eventually, in December 2017, two federal courts put the rules on hold while the cases proceeded, one court finding that the way the rules were created violated the required process for rulemaking, and the other finding the same problem, alongside an added issue: that the rules would likely be struck down since they lacked legal authority.

The rules were on hold, and so people should have been getting their coverage. Or so we thought.

In early 2018, we found out that the Trump-Pence administration had been entering into secret settlement agreements with dozens of organizations to settle their lawsuits against the ACA birth control benefit and the accommodation. The settlement agreements allow them to permanently stop covering birth control, even thought that is in direct violation of the ACA’s birth control benefit and the Supreme Court’s instruction. And, to add insult to injury, the Trump-Pence administration has agreed to pay them at least $3 million to cover their legal fees.

Yes, you read that right: the government is allowing companies and universities to break the law, and is paying them for it.

The University of Notre Dame was one of the organizations that settled with the Trump-Pence administration behind closed doors. Relying on its settlement agreement as authority, Notre Dame has announced its student health plan will stop covering emergency contraception altogether (which also hurts sexual assault survivors), won’t be covering copper IUDs (which many people rely on for medical reasons), and for the methods of birth control it will be covering, the University will only be covering a part of the cost, in plain violation of the ACA.

We know who these attacks on women’s health and rights impact the most: folks who face multiple inequities, like those who are low-income and have a harder time affording birth control out-of-pocket, or people of color who face worse maternal health outcomes because of systemic racism in our health care, or LGBTQ people who already face pervasive discrimination and ignorance in health care.  You can read some of their stories here.

Notre Dame is just one of the dozens of employers and universities that signed one particular settlement agreement. Many of those organizations represent other organizations, like the Roman Catholic Archdiocese of New York, which covers untold numbers of schools and employers that now may all be covered by the settlement agreement too. And that’s just one settlement agreement—there is at least one more out there that we know of, and possibly others still that we don’t know about yet. While we don’t know the full reach of these settlement agreements, what we do know is that despite the public outcry over the Trump-Pence administration’s birth control rules, despite not one but two federal courts holding that the rules could not go into effect, despite the Supreme Court’s orders requiring the government to ensure that people keep their birth control coverage, and despite the benefit that coverage of birth control without out-of-pocket cost brought to 62.4 million people in the U.S., the Trump-Pence administration is trying take away people’s birth control coverage anyway, and it’s doing so through shady, back-room agreements.

And so, to all of this we said: We’ll see you in court.

That’s why we’re suing the University of Notre Dame, which took a hall pass in the form of a settlement agreement from the Trump-Pence Administration, as well as the Trump-Pence Departments of Health and Human Services, Labor, and the Treasury, which all took part in creating the IFRs.

You can read more about the arguments in our lawsuit, but for now, here’s all you need to know: Over the last year, the Trump-Pence Administration has been working behind the scenes to illegally chip away at our reproductive rights and freedom. And we won’t let the Trump-Pence administration—and organizations like Notre Dame that team up with them—-dismantle our rights in secrecy anymore. We’ll see them in the courtroom, in the light of day.

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.

It's time for change, and we must act now. Time's up.