December 2019 Church & State Magazine - December 2019

The Barrier Method: Despite Losses In Federal Courts, The Trump Administration Continues Its Campaign To Curtail Women's Access To Birth Control

  Liz Hayes

Federal courts have repeatedly blocked the Trump administration’s harmful rules that would allow employers and universities to cite religious or moral objections as a basis for denying employees and students health insurance that includes birth control coverage.

But that hasn’t deterred President Donald Trump: In October, almost two years to the day after the rules were first announced, his administration filed a request with the U.S. Supreme Court asking the justices to review the case and overturn a July ruling by the 3rd U.S. Circuit Court of Appeals that continues to block the rules from going into effect nationwide.

In the 3rd Circuit’s unanimous opinion, U.S. Circuit Judge Patty Shwartz wrote that the court’s injunction was warranted and that the rules were likely unlawful because, among other reasons, the administration erred in claiming justification under the Religious Freedom Restoration Act (RFRA).

“RFRA does not demand the Religious Exemption” the new birth control rules created, Shwartz stated bluntly.

Shwartz noted that a prior Obama-era accommodation for employers with religious objections to providing birth control coverage honored the religious-freedom rights of employers while, at the same time, protecting employees’ access to vital health care.

Trump’s birth control rules “would impose an undue burden on nonbeneficiaries – the female employees who will lose coverage for contraceptive care,” Shwartz wrote. “The [administration] downplayed this burden on women, contradicting Congress’s mandate that women be provided contraceptive coverage.”

The Affordable Care Act, passed by Congress in 2010, included the Women’s Health Amendment that established the affordable, preventive health care that must be included in most employer-provided health insurance plans. The needed preventive care included access to birth control with no co-pays because health experts recognize that contraception is critical to women’s health and equality. Birth control allows women to make their own choices about their bodies, manage their medical conditions, participate in the workforce, pursue education and plan whether and when to have a family.

President Barack Obama’s administration accommodated religiously affiliated nonprofits by allowing them to sign an opt-out form noting their religious objections to providing birth control. The government then worked directly with a third-party insurer or administrator to ensure employees continued to have access to birth control with no co-pays. That accommodation was extended to some for-profit corporations following the U.S. Supreme Court decision in Hobby Lobby v. Burwell.

But some entities, like the University of Notre Dame and an order of nuns called the Little Sisters of the Poor, who operate a chain of nursing homes, claimed even signing the form to voice their religious objections was too much of a burden and sued the government. (Americans United is representing Notre Dame students in one of the lawsuits.)

Those lawsuits were still pending when Trump took office, and he quickly acted to blow up the status quo through two separate but related maneuvers. The administration issued new rules that would allow employers and universities to refuse to cover birth control and make the Obama religious accommodation process merely voluntary – meaning employees and students would have no guaranteed access to affordable contraception. The administration also began secret backdoor negotiations to settle the Obama-era lawsuits with Notre Dame, the Little Sisters of the Poor and other organizations.

“Notre Dame prides itself as welcoming of diversity in religion, culture, and sexual orientation. However, by barring access to basic reproductive health care, Notre Dame is denying thousands of students, faculty, and staff the right to make their own decisions about their health care.” — Mauna Dasari, Irish 4 Reproductive Health

Several new lawsuits were filed to challenge the Trump birth control rules: Pennsylvania and New Jersey brought the case that’s pending Supreme Court review, and California led a larger group of states in a separate case. The states are concerned about the financial burdens that would hinder them if women are denied birth control coverage by their employers and must turn to state-funded health programs, or forego contraception and risk more unintended pregnancies that would also tend to require women and families to seek state assistance. (Americans United filed friend-of-the-court briefs in both the Pennsylvania and California cases.)

The 9th U.S. Circuit Court of Appeals in late October reached a similar decision to the 3rd Circuit’s, and also issued an injunction preventing Trump’s birth control rules from going into effect.

“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,” wrote AU Legal Fellow Sarah Goetz of the 9th Circuit decision.

Also pending is a third case against the Trump rules brought by Ameri­cans United and allies at the Center for Reproductive Rights, the National Women’s Law Center and the law firm Macey Swanson LLP. The lawsuit, Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, was filed on behalf of Notre Dame students. It is the only case that represents individuals directly harmed by the rule.

This lawsuit is also the only court challenge to the illegal, secret settlements the Trump administration reached with Notre Dame and other entities to end the prior lawsuits. Notre Dame, which is also a defendant in AU’s case, believes this settlement allows it to deny its 17,000 students, employees and their de­pen­dents access to birth control coverage, which means AU’s clients are being denied coverage even while the Trump rules have been blocked.

Two Notre Dame doctoral students who are members of the reproductive-justice student group Irish 4 Reproductive Health, Kate Bermingham and Mauna Dasari, spoke of their case with the online social-justice news outlet Pacific Standard last year. (The site ceased production earlier this year, but the students’ interview remains available.)

“Restricting the methods of birth control that are available to students and employees endangers our health and well-being,” said Bermingham. “The Trump administration’s settlement with Notre Dame, which violates the Affordable Care Act, would allow our insurers to drop certain long-lasting methods of birth control, such as copper IUDs.”

“Notre Dame prides itself as welcoming of diversity in religion, culture, and sexual orientation,” said Dasari. “However, by barring access to basic reproductive health care, Notre Dame is denying thousands of students, faculty, and staff the right to make their own decisions about their health care. Notre Dame’s decision to deny birth control coverage also further marginalizes groups that historically have fewer resources to pay out-of-pocket for birth control.”

Legal arguments presented by AU’s lawsuit include that the Trump rules violate religious freedom because the government is unconstitutionally giving preference to certain religious beliefs, and that it’s doing so in a way that overtly harms people. The rules are also unlawful because the administration didn’t follow proper federal procedures to enact them, AU asserts.

Alison Tanner, then a legal fellow at Americans United, was among the attorneys who argued AU’s case before a U.S. District Court in Indiana in June. (A decision in the case is pending.) Tanner wrote about the connection between reproductive freedom and religious freedom in a personal essay, “Reproductive Justice: For Me, It’s Personal,” in the July-August 2019 issue of Church & State.

“It is unconstitutional for our government to impose one set of religious beliefs, or religion at all, on everyone else. But that is undeniably what the Trump birth control rules do,” Tanner wrote. “Using religion to deny people access to reproductive health care is a violation of church-state separation. And it is an attack on reproductive freedom. It is discrimination, plain and simple.

“Religious freedom and reproductive freedom are both intensely personal issues,” Tanner added. “No one has the right to impose their beliefs on these issues onto us – not our universities, not our employers and certainly not our government. But as we see in the repeated attacks on birth control access and in the recent attempts to ban abortions, religion is increasingly being used to control our bodies, our health and our lives.” 

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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