As part of the Affordable Care Act’s implementing regulations, group health-insurance plans were required to include cost-sharing-free coverage for various forms of preventive care, including all FDA-approved methods of contraception. Obama-era agency rules required employers to provide insurance plans that covered contraceptive care but exempted houses of worship and created an accommodation for other religious organizations that objected to providing such coverage. After multiple rounds of litigation, the rules provided that nonprofit organizations and closely held for-profit businesses that objected for religious reasons to providing insurance plans that included contraceptive care simply had to notify the U.S Department of Health and Human Services of their objection, and HHS would ensure that contraceptive coverage was provided to the employees separately from the employers’ insurance plans.
The Trump administration replaced these rules with broad exemptions under which any entity, including any nonprofit, for-profit, or publicly held company, could simply deny its employees access to contraceptive care so long as the employer based its denial of coverage on its religious beliefs or moral convictions. And the rules made the requirement that objecting employers notify HHS of their objections to providing coverage completely voluntary, meaning that employers could effectively prevent HHS from ensuring that employees received coverage separately from their employers’ insurance plans, because there would not be a way for the government to know who was being denied coverage by their employer. Essentially, employers could completely block employees and their dependents from receiving contraceptive coverage at all.
Pennsylvania and New Jersey challenged the new rules, and a federal district court entered a nationwide preliminary injunction blocking the Trump administration’s regulations. The U.S. Court of Appeals for the Third Circuit affirmed, concluding that the rules violated the Administrative Procedure Act in a variety of ways, including that they did not follow notice-and-comment procedures and that HHS lacked authority under the Affordable Care Act to issue the rules at all. The court also held that the rules were not required by the Religious Freedom Restoration Act, contrary to the Trump administration’s assertions.
The United States and Little Sisters petitioned the Supreme Court for review, and the Court agreed to hear the case. We filed an amicus brief, joined by 23 religious and civil-rights organizations, supporting the states challenging the regulations. We argued that the expanded exemptions were not permissible because (1) the exemptions were available regardless of whether an employer demonstrated that the previous accommodation substantially burdened their religious exercise; and (2) the exemptions imposed substantial costs and burdens on employees and their dependents, essentially forcing them to underwrite their employers’ religious choices.
In July 2020, the Supreme Court held that the Trump administration had satisfied the Administrative Procedure Act’s procedural requirements in issuing the rules expanding the exemptions, that the Affordable Care Act gave HHS authority to issue the rules, and that the administration could properly consider RFRA in developing the rules. But the Court did not resolve whether RFRA required the expanded exemptions and whether the exemptions were constitutional. The Court returned the rest of the states’ claims to the lower courts to be considered there first.
We continue to litigate our own case challenging the expanded exemptions on behalf of a group of Notre Dame students, Irish 4 Reproductive Health v. U.S. Department of Health and Human Services.