States Renew Push to Block Contraception Rules

OAKLAND, Calif. (CN) – Over a dozen states asked a federal judge in Oakland on Thursday to block new Trump administration rules that will allow most employers to opt out of covering birth control on religious and moral grounds.

A one-month dosage of hormonal birth control pills. New Trump administration rules allow more employers to opt out of covering contraceptives as a preventive benefit for women under the Affordable Care Act. (RICH PEDRONCELLI • ASSOCIATED PRESS)

The motion filed by California and 13 other state attorneys general requesting a nationwide preliminary injunction of final exemption rules comes after the Ninth Circuit scaled back a previous nationwide block of interim rules to just the five states prosecuting the case at the time.

On Dec. 13, the appellate panel held an injunction limited to the five plaintiffs is sufficient for ensuring they wouldn’t be forced under the new rules to pay for additional birth control coverage and health care costs associated with unintended pregnancies.

In response, the plaintiffs added eight more states and the District of Columbia to their lawsuit, bringing the total number of plaintiffs to 14.

They also expanded the scope of the requested injunction to the final rules, which take effect Jan. 14. The previous injunction applied only to the interim rules announced by the Trump administration in October 2017 which expire when the final rules are enacted.

“We successfully fought the Trump administration’s interim final rules because employers have no business interfering in women’s health care decisions. But the Trump administration is continuing to trample on women’s rights and access to care with this illegal final rule,” California Attorney General Xavier Becerra said in a statement Thursday. “Women across the country have benefitted from the [Affordable Care Act’s] cost-free birth control. California will continue the fight against any actions that attempt to restrict women’s access to affordable, quality health care.”

The Affordable Care Act requires employers to cover contraception under their health plans with no co-payment. Religious institutions are exempt from the mandate, and nonprofits were allowed to opt out via an accommodation by which an employer certifies its objection to the mandate to the federal government. The government is consequently tasked with confirming insurers provide separate coverage.

But the Trump administration issued new interim exemption rules in October 2017 allowing any employer or health insurer with religious or moral objections to providing birth control to opt out of the requirement. Under these rules, exempted entities no longer need to certify their objection or otherwise notify the federal government of their decision to stop providing coverage, a provision the plaintiffs contend will create disastrous interruptions in coverage for affected women.

Making their case Thursday, the plaintiffs argued a new nationwide injunction is necessary to “ensure complete relief to the plaintiff states.”

To support this argument, they listed various examples of women residing in the plaintiff states being affected by decisions made by employers located outside these states. For example, some residents of the plaintiff states work for out-of-state employers in states that aren’t part of the litigation, they said. And some plaintiff states are home to students who are on their parents’ employer-sponsored health plans, and those parents and employers are out-of-state.

“These scenarios demonstrate that this court cannot simply draw a line around the plaintiff states and impose an injunction only as to those states to ensure complete relief,” the plaintiffs argued in a legal brief.

They also argued they will likely prevail on the merits of their allegations, including that the final exemption rules violated the Administrative Procedure Act (APA) by permitting public comment only after the interim rules were enacted.

Both presiding U.S. District Judge Haywood Gilliam Jr. in Oakland and the Ninth Circuit concluded the administration lacked good cause in refusing to permit public comment before the interim rules took effect. Noting these twin findings Thursday, the plaintiffs argued the administration’s “post-promulgation acceptance of comments is no substitute” for permitting public comment beforehand.

“Because defendants failed to follow the APA’s notice and comment procedures, the rules are invalid,” they wrote.

Both courts have also held the plaintiffs will suffer irreparable harm absent an injunction, with the Ninth Circuit concluding last week that the harm was “not speculative; it is sufficiently concrete and supported by the record.”

The Justice Department declined to comment Thursday. In a statement issued after last week’s appellate ruling, Justice Department spokeswoman Kelly Laco said the department “will continue to fight injunctions that are contrary to the law and the Constitution.”

A hearing on the motion for a preliminary injunction is set for Jan. 11.

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