6 Things To Know About The Lawsuits Against Trump’s New Birth Control Exemption

October 27, 2017 | Published first in The Federalist

The Trump administration just provided expanded exemptions from Obamacare’s abortifacient and birth control mandate. The ACLU is already challenging them.

On Friday, the Trump administration issued two interim final rules providing expanded exemptions from Obamacare’s abortifacient and birth control mandate. Under the first interim rule, for-profit and non-profit organizations, including publicly traded businesses, qualify for an exemption “based on sincerely held religious beliefs,” as do “institutions of higher education in their arrangement of student health plans.”

The second interim rule creates an exemption from the mandate for non-profit organizations, and for-profit entities that are not publicly traded, if compliance conflicts with the organizations’ “sincerely held moral convictions.”

The interim rules also make the “accommodation” process established by the Obama administration optional. In other words, qualified organizations need not sign paperwork requesting an “accommodation” and directing their insurers to provide birth control to plan participants directly. Instead, employers and educational institutions may just exclude objectionable coverage from their insurance plans and inform employees of the change pursuant to the already-governing ERISA regulations.

Within hours of the administration’s release of the interim rules, two federal lawsuits were filed challenging the revised exemptions. The ACLU sued the Trump administration in a federal district court in San Francisco on behalf of itself and the SEIU-UHW, a labor organization representing health care workers. Meanwhile, on the opposite coast, Massachusetts Attorney General Maura Healey challenged the two interim rules in a Massachusetts federal district court.

Here are six quick take-aways from these lawsuits.

1. The ACLU Claims The Interim Rules Are Invalid (Among Other Things)

Both the ACLU and Massachusetts’ complaints allege four basic claims. First, the complaints assert that the Trump administration violated the Administrative Procedure Act (“APA”), because the interim rules were released without complying with the APA’s notice and public comment requirements.

Second, the lawsuits both allege that the interim rules are invalid because, according to the plaintiffs, the Affordable Care Act (“ACA”) requires plans to provide birth control coverage and the ACA does not authorize a religious or moral exemption.

Third, the plaintiffs argue that by providing a religious exemption, the government is advancing religion in violation of the Establishment Clause of the United States Constitution.

Finally, the lawsuits allege that the defendants are violating women’s rights to equal protection under the law by exempting employers from the abortifacient and birth control mandate.

2. This Case Is Not Yet Ripe—So Why Did The ACLU Rush To Court?

Article III of the United States’ Constitution authorizes federal courts to hear “cases and controversies.” Among other things, that means a case must be “ripe” for adjudication. “And [a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Yet at the time the ACLU filed suit, no one has yet lost coverage for birth control and its standing to sue is contingent on some of its members losing this coverage.

The plaintiffs’ allegations highlight this deficiency: In suing the Trump administration, the plaintiffs alleged “[t]he ACLU and SEIU- HW have members who work for employers or attend universities that are likely to invoke the exemption to the contraception benefit that is authorized by the [interim final rules], including some ACLU members who receive their insurance coverage from an entity that has challenged the contraception coverage requirement.”

While the ACLU did not identify any specific members in its complaint, the ACLU noted in a press release Friday that one of its members, Kate Rochat, “is a law student at the University of Notre Dame and … stands to lose her access to contraceptive health care because of the rule.” But Rochat has not yet lost coverage. Of course, it is only a matter of time before Notre Dame reverts to its previous plan coverage, as demonstrated by this statement issued Friday by the University’s President, Father John Jenkins:

“The University joined a lawsuit against the previous federal rules – by which the government decreed which institutions were sufficiently religious to be exempted and forced those who were not to sign the HHS waiver – because it believes critical issues of religious freedom were at stake. For that reason, we welcome this reversal and applaud the attorney general’s statement that ‘except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law.’”

But for now, the case is not yet ripe. Which leads to the next natural question: Why did the ACLU rush to court? One answer may be forum shopping—to file first in a court sympathetic to the liberal arguments presented. And from the ACLU’s perspective, you can’t get much better than San Francisco and the Ninth Circuit Court of Appeals.

3. It’s Not About the Poor. There Are Other Birth Control Options

Abortion-rights activists have responded to the Trump administration’s expanded religious and moral exemptions by portraying the new rules as depriving women of access to birth control because of the cost. Here’s Dr. Haywood L. Brown, president of the American College of Obstetricians and Gynecologists: “Affordable contraception for women saves lives.”

And Richard B. Katskee, the legal director of Americans United for Separation of Church and State, told the New York Times the new rules “imposed an impermissible burden on female employees who want cost-free contraceptive coverage and may be unable to get it.”

Planned Parenthood head Cecile Richards used a similar charge in a fundraising email, writing: “The extremists who control the Department of Health and Human Services are hell-bent on taking away access to basic health care any way they can.”

Of course, the new rules don’t take away access. Women still have access to affordable birth control, as the new rules stressed:

“[T]here are multiple Federal, State, and local programs that provide free or subsidized contraceptives for low-income women. Such Federal programs include, among others, Medicaid (with a 90 percent Federal match for family planning services), Title X, community health center grants, and Temporary Assistance for Needy Families.”

And for those who must pay out-of-pocket, such as Notre Dame Law School student Kate Rochat, surely, she can—as could her predecessor-in-purpose Georgetown law student Sandra Fluke—afford to pay $9 a month for birth control if she can handle the annual tuition bill of $55,802.

4. It’s Not About Principle, Or the ACLU Would Have Sued Obama

It’s also not about the principle. If it were, the ACLU and liberal attorneys general would have filed suit against the Obama administration: Every legal argument advanced against the Trump administration’s new rules applied with equal force to the rules issued by President Obama’s team. For instance, as recently as December 20, 2016, the Obama administration updated the controlling Guidelines “without engaging in the regulatory process (because doing so is not a legal requirement).” And while the current lawsuits claim religious and moral exemptions are not permissible under the ACA, a similar argument could have been made against then-President Obama’s narrower religious exemption—ditto on the Establishment Clause and Equal Protection claims.

5. This Lawsuit Defends ‘Moral Beliefs’ Over Religious Liberty

The ACLU also isn’t about principle. Religious liberty is a first principle. Yet while the ACLU alleged in its complaint that it “has a long history of defending the fundamental right to religious liberty, and routinely brings cases to protect the right to religious exercise and expression, including for people of majority and minority faiths,” the ACLU chose to instead lift the amorphous concept of “reproductive rights” above the constitutionally-protected right to free exercise of religion.

If there is any doubt of the American Civil Liberties Union’s abdication of purpose, consider the legal theories underlying the ACLU’s complaint: In its complaint, the ACLU alleges the religious exemption violates the First Amendment, but makes no such claim concerning the moral beliefs exemption. Thus, under the ACLU’s own theory, non-religious moral beliefs receive greater constitutional protection than sincerely held religious beliefs. So much for defending religious liberty.

6. Until We Repeal Obamacare, This Battle Is Far From Over

A few months ago, President Donald Trump assured the Little Sisters of the Poor that their “long ordeal will soon be over.” It is for now, although the reprieve may prove fleeting with the flurry of litigation just starting over the interim rules exempting religious and moral objectors from the abortifacient and birth control mandate.

Of course, had congressional Republicans kept their word and repealed the ACA in the first place, there would be no mandates at all.

While Trump may have saved the nuns, for the rest of the country, the long ordeal of Obamacare is far from over.

Margot Cleveland is a senior contributor to The Federalist. Cleveland is a lawyer and a graduate of the Notre Dame Law School as well as a former full-time faculty member and current adjunct professor for the college of business at the University of Notre Dame.