As a second Trump administration approaches, we’re running out of time to confirm as many federal judges as possible to provide a check on his presidential power and curb his stated policy priorities.
There are 43 federal judicial vacancies and 14 nominations before the Senate right now—as our civil rights hang in the balance, take action now!
Yesterday a federal court in Massachusetts issued an opinion that dangerously underestimates the harm to women and families that will result from the Trump Administration’s efforts to gut the Affordable Care Act’s birth control benefit, which guarantees insurance coverage of all FDA-approved methods of birth control with no out-of-pocket costs.
The court dismissed a lawsuit by the Massachusetts Attorney General challenging two Trump Administration rules that would allow virtually any employer or university claiming religious or moral objections to refuse to provide insurance coverage of birth control. In deciding to throw out the case, the court did not consider any of Massachusetts’ arguments as to why the rules are unlawful under federal statutes and the U.S. Constitution. Instead, the court focused only on whether Massachusetts had a right to go to court to protect the health and well-being of its residents, holding that it did not.
In its lawsuit, Massachusetts explained to the court that thousands of Massachusetts women stand to lose insurance coverage of birth control as a result of the Trump rules, which would make the state incur significant expense due to added strain on Medicaid, state-funded clinics, and other public programs.
But the court disregarded Massachusetts’ evidence. Instead, the court said that a new law passed by the legislature shortly after the Trump rules were issued – the ACCESS Act – would save the day. That law protects some Massachusetts residents from the Trump rules because it requires insurance plans governed by state law to cover birth control coverage with no out-of-pocket costs. In light of this new law, the court decided that Massachusetts did not prove it likely that the state or any of its residents would suffer any harm from the Trump rules.
But although the ACCESS Act is a huge achievement, it does not undo the harm from the Trump rules. This is because the ACCESS Act does not apply to plans that “self-insure” (because those are governed by federal, not state, law). Nearly 60 percent of Massachusetts residents who have private health insurance are enrolled in self-insured plans and could lose coverage under the Trump rules if their employer objects. The court’s refusal to acknowledge the likelihood that many Massachusetts women will lose birth control coverage under the Trump rules notwithstanding the ACCESS Act ignores reality and effectively penalizes the state legislature for doing what it can to protect its residents.
Fortunately, this decision does nothing to disturb two nationwide preliminary injunctions that are already in place blocking the Trump rules from taking effect while legal challenges are being decided. Federal courts in California and Pennsylvania issued those injunctions after determining that the rules likely violate federal law and that legal challenges were likely to succeed.
Make no mistake about it, the Trump Administration rules seriously jeopardize the health, equality, and economic security of women in Massachusetts and nationwide. As the federal court in Pennsylvania recognized, the rules’ expansive exemptions from the ACA birth control benefit are the “proverbial exception that swallows the rule.” If the Trump rules are allowed to take effect, many women will face out-of-pocket costs that may lead them to choose less effective contraception methods or forgo birth control altogether. This can result in unintended pregnancy and health complications, which undermine women’s educational and professional development. The Trump rules will disproportionately harm low-income women, women of color, and LGBTQ persons, who already face greater barriers to accessing reproductive health care, including birth control. The court in Massachusetts got this one wrong, but we will continue to fight to make sure these dangerous rules are struck down for good.
