Ninth Circuit Reviews Feds’ Birth Control Policy

Birth control pills (AP file photo)

SAN FRANCISCO (CN) – Considering for a second time a California block on controversial Trump administration rules letting employers stop covering employee birth control, the Ninth Circuit seemed poised Thursday to freeze the case until a similar one in Pennsylvania is reviewed.

U.S. Circuit Judge Susan Graber said the Third Circuit should rule on a nationwide preliminary injunction issued on Jan. 14 in Philadelphia before her court reviews a partial one entered in Oakland one day prior, on Jan. 13.

“If it upholds it, it would cover the states here on the same theories,” Graber, a Clinton appointee, said of the Third Circuit. “We would simply be giving an advisory decision at this point.”

Handed down by U.S. District Judge Haywood Gilliam Jr., the Oakland injunction covers only the 14 states that sued over the rules in the Northern District of California. The rules, which were in effect for a few hours before the Pennsylvania injunction froze them, expanded an existing church exemption and installed a new moral exemption allowing employers with religious and moral objections to birth control to stop covering it under their employee health plans. According to California and its co-plaintiffs, the new exemptions allow almost any employer to stop covering birth control.

The Affordable Care Act of 2010 requires employers to cover birth control at no cost. Religious institutions are exempt from the mandate, and nonprofits were later allowed to opt out via an accommodation requiring them to notify the government they no longer wished to provide contraception coverage, so that replacement coverage could be arranged. But under Trump’s rules, exempted entities no longer need to notify authorities of their decision to stop providing coverage.

The plaintiffs say that will create disastrous interruptions in coverage for affected women, who won’t learn their coverage has lapsed until they visit a health care provider.

It is unclear whether the Pennsylvania ruling invalidated Gilliam’s, and in April, the Ninth Circuit ordered supplemental briefing on the matter. Graber seemed Thursday to think it had and signaled she would vote to stay the California appeal until her East Coast colleagues rule.

“If the Third Circuit upholds it, it’s utterly meaningless for us to disagree,” she told Justice Department attorney Brinton Lucas. “If the Third Circuit doesn’t, we can take up the case at that time for a decision. Why isn’t that the logical and appropriate approach?”

Lucas said an unfavorable Third Circuit ruling would mean an appeal to the U.S. Supreme Court. The ongoing fight would require relief from the Ninth Circuit in the 14 plaintiff states covered under Gilliam’s order, he said.

The argument prompted a withering reply from Graber, who noted government counsel recently told the Third Circuit that “if we win that appeal in the Ninth Circuit, it will be utterly meaningless if this court affirms the nationwide injunction.”

“That contradicts what counsel said to the Third Circuit. That flatly contradicts it,” Graber said.

Lucas countered that waiting would “chill discussions and debates among the circuits.” But he did not object to the panel ruling on just discretion for now.

Appellate courts review a trial judge’s grant of a preliminary injunction for “abuse of discretion” in finding a plaintiff was likely to succeed on the merits of its claims. Merits-based rulings can be made later.

Last December, the same Ninth Circuit panel held that Judge Gilliam had not abused his discretion in issuing a nationwide injunction against the contraception rules, but narrowed it to the five states suing at the time.

The plaintiffs added nine states to the suit for a total of 14 and again moved for a nationwide injunction. Gilliam, an Obama appointee, granted it in January but limited it to the plaintiffs, citing the Ninth Circuit’s recent ruling.

The panel could arguably again rule for the plaintiffs on discretion – the renewed suit is largely based on the same legal theories and Gilliam made similar findings.

Arguing for anti-abortion group and intervenor March for Life, Ken Connelly encouraged the three-judge panel to rule now because no new evidence will be filed in the case before Gilliam rules on summary judgment later this year, an argument Senior U.S. Circuit Judge Andrew Kleinfeld appeared to accept.

“So it’s basically like a petition for review of an administrative determination,” said Kleinfeld, a George H.W. Bush appointee. Earlier, Kleinfeld said the case was unlikely to go to trial.

Disputing Connelly’s assertions, California Deputy Attorney General Karli Eisenberg said additional evidence will in fact be filed. That includes evidence supporting the states’ constitutional claim that the rules will harm women who, for example, become pregnant after losing contraception coverage, she said. She added that arguments the administration acted arbitrarily and capriciously will change “the next time if we’re back in front of this court again on that issue.”

Senior U.S. Circuit Judge J. Clifford Wallace, a Nixon appointee, seemed to sum up how the panel may rule.

“So all we have to do now is determine whether the district court abused its discretion in granting an injunction now until we have the full record,” he told Eisenberg. “And then we’ll have a different review, which will be more difficult for you when it comes up after the permanent injunction.”

“I believe that is correct,” she replied.

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