Abortion Access

Some Good News In The Battle To Maintain Access To Birth Control

  Sarah Goetz

Earlier this week, the 9th U.S. Circuit Court of Appeals upheld a lower court’s ruling in California v. Azar, blocking Trump administration rules that would allow employers and universities to deny their employees and students health-insurance coverage for contraceptive care. It’s a win for reproductive rights, religious freedom and common sense.

First, a little context: The Affordable Care Act requires health insurance plans to cover preventative 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 such coverage.

This accommodation was the subject of much litigation, but at the end of the day, it looked like this: nonprofit organizations and closely held for-profit businesses that objected 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 take it from there. This process would accommodate the religious beliefs of objecting businesses and organizations while still ensuring that contraceptive care would be provided without a co-pay to those who need it.

That compromise wasn’t enough for the Trump administration, which claimed that this accommodation still violated religious freedom and replaced the Obama-era rules with a set of their own: rules that consisted of sweeping exemptions under which any entity could simply deny its employees or students access to contraceptive care, so long as the employer or university based its denial of coverage on its religious beliefs or moral convictions.

Several federal lawsuits were filed to challenge the Trump rules, including a case brought by Americans United and our allies. Another case was filed in California by 13 states and the District of Columbia. In that case, the trial court issued an injunction, blocking the Trump administration rules from taking effect while the lawsuit is pending.

On Tuesday, a panel of judges in the 9th Circuit upheld the trial court’s decision. The appeals court held that the Trump administration rules fly in the face of the ACA’s requirement that appropriate preventative care, including contraceptive care, be provided to all who need it, without requiring a co-pay.

And, crucially, the court rejected the government’s argument that the Trump administration rules were supported, or even required, by the federal Religious Freedom Restoration Act. RFRA prohibits the federal government from imposing “substantial burdens” on religious exercise. But, as the 9th Circuit readily concluded, the Obama-era rules imposed no such burden. Recall that those rules merely require objecting employers to notify HHS in writing of their objection. That’s it. A written notification of that kind is not a substantial burden on anyone’s religious exercise. As the appeals court put it, such a burden is merely de minimis – in other words, so inconsequential as to be virtually no burden at all.

It’s a welcome outcome at a time when many in the Trump administration have sought to weaponize religion – often relying on RFRA – to protect a narrow set of religious beliefs at the expense of others. That’s not protecting religious exercise; it’s codifying harm. Fortunately, the 9th Circuit seemed to recognize as much in its ruling this week.

The 9th Circuit joins the 3rd U.S. Circuit Court of Appeals, which reached the same decision in a related case just a few months ago. Americans United filed friend-of-the-court briefs in both cases.

And these same Trump administration rules are at the center of AU’s own lawsuit in federal court in Indiana, Irish 4 Reproductive Health v. Azar, in which we joined the Center for Reproductive Rights and the National Women’s Law Center to represent a group of University of Notre Dame students who have lost access to contraception because of these rules and a backroom settlement agreement negotiated between Notre Dame and the Trump administration.

Americans United will continue to fight on behalf of our clients until the day comes when no American faces the threats of losing access to vital health care because of someone else’s religion. You can help protect religious freedom and reproductive freedom by joining us.

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