Contraceptive Clash

AU And Allies File Federal Lawsuit Challenging Trump Administration’s New Birth Control Rules

As promised when President Donald Trump announced his attack on women’s health care, Americans United has filed a federal lawsuit challenging the administration’s new regulations that allow employers and universities to use religion as an excuse to deny staff and students health insurance coverage for birth control.

The National Women’s Law Center and the law firm Dentons joined AU in filing Shiraef v. Hargan on Oct. 31 on behalf of five women in the Midwest who are likely to lose access to critical health care because of Trump’s new regulations. These women include three University of Notre Dame students; Alicia Baker of Indiana, whose insurance provider opposes the Affordable Care Act’s (ACA’s) contraceptive-coverage provision even though her employer – a church – does not; and an employee of an Illinois university.

“Women deserve better than to have their most intimate and personal medical decisions subjected to a boss’s religious veto,” said Richard B. Katskee, Americans United’s legal director. “President Trump’s zeal to curtail access to birth control is mean-spirited and shortsighted – and his actions are unconstitutional. That’s why we’re taking him to court.”

The lawsuit explains that the Trump administration’s new rules violate the rights of the more than 62 million women who currently have insurance coverage for birth control. Offering employers and universities a religious exemption from the ACA’s contraceptive-coverage provision is unconstitutional, AU says, because it favors certain religious beliefs over others and excessively entangles the government and religion.

The new rules discriminate against women on the basis of sex and religion. And since the rules went into   effect immediately when they were issued on Oct. 6 without any op­por­­tunity for public review, the federal departments that issued them violated legally required procedures for adopting new rules, the lawsuit asserts. (By comparison, the existing ACA regulations took six years to implement, involved six rounds of public-comment periods and prompted more than 725,000 comments from the public.)

“Contraception is critical to wo­men’s health and economic and social equality. It is also critical to the health of women’s families,” AU notes in the lawsuit. “Because contraception enables women to decide if and when to have children and is also used to treat or manage a wide array of often severe medical conditions, access to contraception allows women to make decisions that affect a broad spectrum of issues:  their health, their education and livelihoods, and the health of their families. By allowing employers and universities to deny women access to contraceptive coverage, the Rules threaten women’s health and strip women of their equal participation in society and the economy.”

Plaintiffs Baker and Mary Shiraef explained why affordable access to birth control is essential to their health and equality. (They are the only plaintiffs who are named in the lawsuit. The other three women are remaining anon­­ymous to protect their privacy and to avoid potential retaliation from their respective employer or university.)

“Access to contraception is crucial to me on many levels – intimately, for my career and for my personal health,” said Shiraef, 26, a graduate student at Notre Dame. “It means I can decide if and when I have children. It also means I can entirely focus on the quality of my relationship, without fear of an unplanned pregnancy. It means I get to focus on my task at hand – working toward a Ph.D. – in equitable measure to my male colleagues. It has also improved my overall health. My IUD has reduced the symptoms of my irritable bowel syndrome, which only doubles the benefits of contraceptives for me.”

Baker expressed similar sentiments.

“As a graduate of seminary school, member and employee of a church, I believe taking birth control in no way violates my religious beliefs. It’s a personal decision I make to plan my family,” Baker asserted. “Putting barriers in the way of accessing birth control puts ordinary women’s lives on the line, like mine, and I am challenging these rules on behalf of us all.”

The universities, employers or insurance brokers that these women depend upon for comprehensive health insurance have a history of objecting to the ACA’s benefit that requires most health insurance plans to cover all FDA-approved birth control options with no out-of-pocket costs to women.

For houses of worship, nonprofits, universities and certain corporations that had a religious objection to birth control, the ACA provided an accommodation in which these entities could opt out of offering birth control in their insurance plans and the government would arrange for a third-party insurer to provide the coverage instead.

But some entities challenged even this accommodation, insisting that the mere act of filling out the opt-out form violated their religious freedom. Entities filing those lawsuits included the University of Notre Dame, where three of the women in the lawsuit are students, and the insurance providers GuideStone Financial Resources and Christian Brothers, from which the other two women in the legal challenge get their health insurance.

Americans United represented Notre Dame students in the extended court battle over the ACA birth-control benefit – the only case in which women whose coverage was at risk were directly involved. The original Notre Dame case was dismissed shortly after the Trump administration issued its new regulations in October.

The same day AU’s new lawsuit was filed, officials at Notre Dame announced they would take advantage of Trump’s new rules and would cease offering health insurance that includes birth control coverage for employees at the end of the year, and for graduate students like AU’s clients next summer.

A week later, Notre Dame appeared to reverse course when it announced its health insurance providers, Meritain Health/OptumRx and Aetna, would con­tinue to offer birth control coverage for employees and students.

Notre Dame’s reversal was lauded by some.

“It’s great to see that Notre Dame has listened to the students, faculty and staff who were going to be affected,” Jamee Elder, a doctoral candidate at Notre Dame, told U.S. News & World Report. “While the status quo is still sub-optimal ... for today I’m just grateful that the administration was willing to change their position to better reflect the needs of members of the Notre Dame community.”

Others decried the news.

“Notre Dame spent five years suing the federal government for the right to provide moral health insurance,” Ryan Anderson, a senior research fellow at the conservative Heritage Foundation, said on Twitter. “They now have that right. And they’re choosing not to exercise it. They’re choosing to provide immoral health insurance. Shameful. Scandalous.”

AU Legal Fellow Kelly Percival said attorneys are awaiting more details from Notre Dame to ensure students will have access to comprehensive contraception coverage as required by the ACA. At Church & State’s press time, attorneys still were reviewing whether and how Notre Dame’s plans will affect the lawsuit with respect to the women who are Notre Dame students.

Meanwhile, five states (California, Del­aware, Maryland, New York and Virginia) that also are challenging Trump’s new birth control rules requested a preliminary injunction that would block the rules from going into effect. As this issue of Church & State went to press, that request was still pending in a federal court in northern California.

AU and its allies continue to point out that this debate is not theoretical. It has real-world consequences for millions of women.

Shiraef, one of the Notre Dame students that AU is representing, summed that up well when she discussed how affordable access to birth control is an issue of both personal and societal importance to her.

“The public benefits of contraceptives are widely documented around the world, including economic growth, lowering health care costs, improving family life and reducing poverty. But the benefits of contraceptives also are private and unique to each individual case,” Shiraef said. “The fact that the U.S. government is trying to limit access to birth control rather than making it more available to women is highly concerning in the development of our nation as a whole. At the same time, it is an intrusion into women’s private lives and decisions.”