The Affordable Care Act requires health insurance plans to cover preventive care. Under the Obama Administration, federal agencies enacted rules requiring employers to provide insurance plans that covered contraceptive care. They exempted houses of worship from complying with the rules, and they created a workaround for other religious organizations that objected to providing the coverage, so that the entities would not have to provide or pay for the insurance coverage but employees and their dependents would still receive it.
Following several rounds of litigation, the rules provided that nonprofit organizations and closely held for-profit businesses that objected on religious grounds to providing insurance plans that included contraceptive care had only to notify the U.S. Department of Health and Human Services or their insurance company of their objection, and HHS would ensure that contraceptive care was provided without a copay. This tailored compromise honored the sincerely held beliefs of religious institutions while ensuring that those beliefs were not used to violate the beliefs, rights, or interests of others.
But that compromise wasn’t enough for some religiously affiliated employers, including the University of Notre Dame. The University took the position that the accommodation still violated its religious exercise. It entered into a secret settlement agreement with the Trump Administration under which it was absolved from complying with the ACA regulations or any future requirements relating to contraceptive coverage. And then the Trump Administration replaced the Obama-era rules with ones that contained sweeping exemptions allowing any entity, including all nonprofit, for-profit, and publicly held companies, to refuse to provide employees with contraceptive coverage if the business has a religious or moral objection to contraception. The rules also made participation in the accommodation process completely voluntary, meaning that the businesses could also prevent the government or insurance companies from providing coverage voluntarily, even without any participation in or payment by the business. The rules thus took none of the interests of employees or their dependents into account.
Americans United, together with the National Women’s Law Center, the Center for Reproductive Rights, and the law firm Fried Frank, sued both the Trump Administration and Notre Dame on behalf of several Notre Dame students and Irish 4 Reproductive Health, a student group, in federal district court in Indiana.
In early 2020, the district court denied the government’s and Notre Dame’s motions to dismiss the lawsuit and allowed almost all of our claims to proceed, including our claim that the rules and settlement agreement violate the Establishment Clause of the First Amendment.
Then, in July 2020, the Supreme Court decided a pair of cases, Trump v. Pennsylvania and Little Sisters of the Poor v. Pennsylvania, concerning the same Trump Administration rules. The Court held that the Affordable Care Act authorized the government to create exemptions from the Act’s requirements, that the Trump rules were procedurally valid, and that the administration could take the Religious Freedom Restoration Act into account when crafting the rules. The cases effectively disposed of some but not all of the claims in our lawsuit.
In the wake of the Supreme Court’s rulings, we filed an amended complaint in the district court in Indiana, and we engaged in a new round of briefing over whether the cases can proceed in light of Little Sisters. In August of 2021, the district court ruled that the Supreme Court’s decisions permit only one of our claims to proceed.
We have put the case—and resolution of our remaining claim—on pause for now because the Biden administration has announced that it is evaluating whether to change the Trump-era rules. In an August 2021 FAQ regarding implementation of the Affordable Care Act, agency officials said that they “are considering how best to address these provisions in light of recent litigation,” and that they “intend to initiate rulemaking within 6 months” to change the rules.