9th Circuit Blocks Trump Administration Contraceptive Rules

Contraceptive coverage has been among the ACA’s most litigated topics

Stephen Miller, CEBS By Stephen Miller, CEBS October 28, 2019
9th Circuit Blocks Trump Administration Contraceptive Rules

​A panel of the 9th Circuit Court of Appeals has upheld a lower court's order blocking two Trump administration rules that would exempt employers with "sincerely held religious beliefs or moral convictions" from being required to provide female employees with contraceptives at no cost under the Affordable Care Act (ACA).

The three judges' ruling on Oct. 22 in California v. U.S. Department of Health & Human Services followed a similar decision by the 3rd Circuit in July that had already resulted in a nationwide injunction against the administration's rules. These rulings are expected to once again place before the U.S. Supreme Court the issue of requiring employers to pay for birth control.

The ACA's implementing regulations list the types of female birth control coverage that health plans must provide, including some that critics consider "abortifacients"—devices or pills that result in abortion. Following a 2017 executive order from President Donald Trump, the departments of Health and Human Services (HHS), Labor, and Treasury released two interim final rules addressing religious and moral objections to requiring contraceptive coverage under the ACA's preventive services requirement. The rules significantly expanded an Obama-era policy on exemptions to the contraceptive mandate for religious entities.

Here are SHRM Online resources and news articles from other trusted media outlets addressing the contraceptive coverage controversy.

Supreme Court Review Expected

The administration's interim final rules were successfully challenged in two lawsuits by Democratic attorneys general, led by Pennsylvania and California. District courts in both states granted preliminary injunctions to prevent the rules from going into effect, and these cases were upheld by the 3rd and 9th circuits, respectively.

In early October, Little Sisters of the Poor, an order of nuns who object to the contraceptive coverage requirement and to the earlier Obama administration accommodation, asked the Supreme Court to review the 3rd Circuit's decision. It seems reasonable to expect Little Sisters and/or the federal government to similarly appeal the 9th Circuit's decision to the U.S. Supreme Court.

(Health Affairs)

Two Injunctions Differ

While the 3rd Circuit injunction against the Trump administration's rules applies nationwide, the 9th Circuit's injunction is restricted to the 14 states (plus Washington, D.C.) that had joined the suit on which the panel ruled. Noting some recent judicial objections to nationwide injunctions, the 9th Circuit said the California district court case it affirmed is still a live issue because the Supreme Court could narrow or overturn the broader Pennsylvania ruling.

California Attorney General Xavier Becerra said the 9th Circuit ruling "will serve as a reminder to the Trump administration that politicians and employers have no business interfering with women's reproductive freedom." The Becket Fund for Religious Liberty, a nonprofit representing Little Sisters of the Poor, said the ruling showed that "nuns are still being bullied in court."

(San Francisco Chronicle and NBC News)

Contraceptive Mandate Stokes Controversy

The mandate about birth control doesn't specifically appear in the ACA. The law was written to allow HHS to decide what type of preventive care health insurance plans should cover without co-pays, and the Obama administration determined that various forms of birth control should be included, from the pill to intrauterine devices (IUDs) to emergency contraception.

Some organizations oppose all forms of birth control and sterilization, while others oppose specific kinds such as IUDs and emergency contraception, which they say are abortifacients because the labels indicate an ability to prevent a fertilized egg from attaching to the uterus.

(Washington Examiner)

Loss of Birth Control Coverage

After federal agencies issued the two interim final rules that exempted certain organizations from the ACA's contraceptive mandate if their opposition is based on religious or moral grounds, the Trump administration predicted at most 120,000 women would be affected, mainly those who work at the roughly 200 entities that have been involved in 50 or so lawsuits over birth control coverage. But critics of the rules predicted more will be affected as the rules could open the door to hundreds of employers dropping coverage.


[SHRM members-only toolkit: Complying with and Leveraging the Affordable Care Act]

Compromise Proves Elusive

In 2016, the U.S. Supreme Court sent cases involving women's access to contraceptives back to the lower courts with instructions that the parties be given the chance to "arrive at an approach going forward that accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans receive full and equal health coverage, including contraceptive coverage."

As Aaron Goldstein, an attorney at Dorsey & Whitney in Seattle, put it, the court's decision meant that "important questions pitting the free exercise of religion against the government's interest in providing access to contraceptives go unanswered."

(SHRM Online)


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