The Trump-Pence Final Birth Control Rules Are Blocked For Now, But The Fight Continues

Victory! Federal courts in Pennsylvania and California have issued preliminary injunctions blocking the dangerous Trump-Pence administration final birth control rules from taking effect while legal challenges are decided. If the courts had not acted, the rules would have taken effect January 14 and would have allowed virtually any employer or university to deny insurance coverage of birth control to employees and students. Instead, the courts issued thoughtful and thorough opinions explaining why the rules are likely to be struck down as unlawful. In the meantime, the courts made clear that the rules about birth control coverage that existed before the Trump-Pence administration, which guarantee most women birth control coverage, are still in effect.
The California decision limited the reach of its injunction to just 13 states and DC, but the Pennsylvania decision applies nationwide—meaning that no one should be losing birth control coverage under these rules.
Here are the highlights from the decisions:

Both courts held that the ACA does not authorize the rules’ sweeping exemptions

The courts emphasized the “remarkable” breadth of the exemptions in the final rules and concluded that they are not allowed by the text of the Affordable Care Act. As the California court said, the ACA birth control benefit is a “statutory mandate,” and “[t]he Rules cannot be reconciled with the text and purpose of the ACA—which seeks to promote access to women’s health care, not limit it.”
As the courts noted, not only does the relevant ACA text not include any exemptions, but in 2012 Congress considered and rejected precisely the sort of exemptions contained in the rules. Agencies cannot act without authorization by Congress, but that is exactly what the Trump-Pence administration attempted to get away with here. The courts weren’t having it.

Both courts held that the Religious Freedom Restoration Act does not justify the rules

Both courts rejected the Trump-Pence administration’s arguments that the Religious Freedom Restoration Act (RFRA) gives the agencies authority to issue these rules.  RFRA is a federal law intended as a shield to protect religious exercise, not as a sword to use religion to deny the rights of others. The courts said that the Trump-Pence administration can’t use RFRA to justify these rules. The courts rejected the extreme argument that RFRA gives agencies the right to make up exemptions to federal laws however they see fit, and without any regard for the harm to others.

The Pennsylvania federal court held that the way the Trump-Pence administration issued the rules was unlawful

Under a federal law called the Administrative Procedure Act (APA), federal agencies must follow certain procedures when issuing rules, including seeking comments from the public before the rules go into effect. But the Trump-Pence administration disregarded these requirements, making the interim version of the rules effective immediately and then only seeking comments after the fact. The Pennsylvania federal court held that this failure to follow proper procedures “fatally tainted” the final rules in violation of the APA.

The California federal court slammed the Trump-Pence administration for flouting the Supreme Court’s direction to ensure people get birth control coverage and abandoning women who will be left without coverage

The California court called out the Trump-Pence administration for ignoring the Supreme Court’s instruction in the 2016 case Zubik v. Burwell, which directed the government to find a solution that both protects religious freedom and “ensures” women receive the birth control coverage they are entitled to under the ACA. The California court further recognized that since the change in administration, “no party in [lawsuits challenging the birth control benefit has] purported to represent, or even consider the substantial interests of, the women who now will be deprived of ‘full and equal health coverage, including contraceptive coverage’” as required by Zubik (emphasis in opinion).

Both courts highlighted the Trump-Pence administration’s unjustified about-face on the importance of birth control

Both courts raised the Trump-Pence administration’s 180-degree shift on the importance of birth control. The California court in particular called out the Trump-Pence administration’s “complete reversal” on the “key question” of whether providing “seamless, cost-free contraceptive coverage” is a so-called “compelling” governmental objective. The court concluded that the Trump-Pence administration provided “no new facts and no meaningful discussion that would discredit” their previous position “establishing the beneficial and essential nature of contraceptive healthcare for women.”

Both courts held that the rules will cause irreparable harm if allowed to go into effect

As the California court correctly recognized, “for many thousands of women . . . the mandatory coverage structure now in place under the ACA will disappear, requiring them to piece together coverage from Title X clinics or state agencies, or to pay for coverage themselves.” And as the Pennsylvania court observed, others who cannot pay out-of-pocket “will likely forgo contraceptive services or seek out less expensive and less effective types of contraceptive services in the absence of no-cost insurance coverage,” threatening their health and well-being.

The Pennsylvania federal court blocked the rules nationwide

The Pennsylvania court correctly pointed out that you can’t draw clean lines around states when it comes to insurance coverage and access to health care. Many Pennsylvania and New Jersey residents (New Jersey joined Pennsylvania’s lawsuit) work out of state and get insurance coverage from out-of-state health plans, and many students in Pennsylvania and New Jersey have coverage through their parents’ out-of-state plans. So, nothing short of a nationwide injunction would protect Pennsylvania, New Jersey, and their residents.

The fight continues

The California and Pennsylvania federal courts rightly recognized that the final rules are dangerous and unlawful and must be blocked while legal challenges are decided. But the fight continues. The ink hadn’t even dried on these opinions before appeals were filed. NWLC will continue to support the states’ legal challenges and will fight these harmful rules in our own lawsuit until they are blocked for good.