Constitution Daily

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New constitutional tests on birth control begin

October 7, 2017 by Lyle Denniston


Almost 17 months after the Supreme Court sent platoons of lawyers off on what turned out to be a failed mission to work out the nationwide controversy over women’s access to birth control, the newly deepened controversy returned to the federal courts on Friday.

The first of a series of lawsuits landed in a federal court in San Francisco, within hours after the Trump Administration put out new rules to greatly expand the opportunities of businesses, non-profits and insurers to avoid having to provide free birth-preventive devices and services to women workers and students.  That lawsuit will soon be followed by others, probably stretching from coast to coast – in the same way that earlier legal challenges had unfolded.

The controversy is another one that centers on the Affordable Care Act – popularly known as “Obamacare” because it was the signature domestic policy initiative under President Obama.  At issue now, as earlier, is the validity of the birth-control mandate, a series of federal rules interpreting the ACA to assure that women workers and students have access, without cost to them, to contraceptive services through health insurers.

Those rules first came out in August 2011, but have been almost constantly under challenge by religious organizations and religiously-oriented colleges, schools, hospitals and charities, claiming that they were being forced by the mandate to violate their religious objections to contraception.

Those challenges were pursued in courts by scores of entities, but their efforts were often referred to by a shorthand reference to the Little Sisters of the Poor, an order of Roman Catholic nuns who serve the needy and who became the sympathetic public face of the challengers.

On Friday, in two lengthy documents published in the Federal Register, agencies of the Trump Administration moved to expand exemptions that the Obama Administration had allowed to houses of worship, so that now complete exemptions would become available to profit-making businesses and non-profit institutions with religious objections.   In a sweeping addition to that, the agencies – for the first time – provided the same kind of exemption for organizations that do not have religious objections, but rather morals-based objections, to birth control.

Those two documents were based in part upon a broad new directive, issued by Attorney General Jeff Sessions, directing agencies across the federal government to take new steps to protect “religious liberty” by insulating those who act upon their religious beliefs from being challenged for doing so — say, protection against lawsuits based upon anti-discrimination laws.

The American Civil Liberties Union took little time, after those two documents came out Friday morning, before filing the first court challenge to both parts of the new exemptions.   The lawsuit filed in a federal trial court in San Francisco made a series of claims against the new rules (which were due to take effect immediately on an “interim” basis:

First, the lawsuit contended that the new rules are an unconstitutional form of discrimination in favor of religion, because they single out protection for specific religious views, such as opposition to abortion or family planning.

Second, it argued that both the exemptions based on religion and those based on moral views are an unconstitutional form of discrimination based upon unequal treatment of women in need of health insurance related to reproduction.

Third, it argued that the new exemptions were issued and ordered into effect before giving the public the chance to offer comments and reactions to them, in violation of federal administrative law.

Fourth, it contended that the Trump agencies changed the prior policy of the Obama Administration without an adequate explanation, in violation of federal administrative law.

And fifth, the lawsuit added a claim that the federal agencies that crafted the new exemptions did not have the legal authority to do so under the Affordable Care Act, since the ACA bars the government from creating barriers to access to health care.

The lawsuit asked the federal court to bar the Trump Administration from enforcing its new approach to the mandate.

A group of 18 states’ attorneys general sent a letter to Trump Administration officials to protest the new exemptions, and one of those states — Massachusetts — promptly filed its own court challenge.  Advocacy groups, such as the Citizens United for Separation of Church and State, are also expected to go to court.

Thus, a whole new round of court trials will be unfolding, with the very likely prospect that the controversy will return to the Supreme Court at some point.   The Justices were last involved with this dispute in May of last year.

After the court had agreed to rule on the religious objections to the birth-control mandate as fashioned by the Obama Administration, the Justices found themselves unable to resolve the competing claims for religious freedom and for easy access to birth control for women.   So, they sent a series of cases back to lower courts, saying that they believed there was a basis for expecting the lawyers to solve the competing claims so that religious sensitivities would be respected while not denying women access to preventive health services.

But, after months of on-again, off-again discussions among the lawyers and their clients and after  the Obama Administration sought ideas from the public and from interested organizations (drawing 54,000 comments), Obama agencies announced in September last year that they had concluded that “no feasible approach [to a solution] has been identified at this time.”

That is where the matter stood until the Trump Administration came into office in January of this year, and soon after launched an internal review of the entire controversy.  That review wound up with the public release Friday morning of a 136-page document widening the exemption to the mandate for those with religious objections, and a 100-page document spelling out the similar exemptions for those whose objections were based on moral, not religious, grounds – largely a response to a plea for exemption from the Right to Life, an anti-abortion organization that could not qualify for a religious exemption.

Two hours later, the ACLU sued in San Francisco, in a lawsuit that clearly had been drafted in advance, based upon leaked earlier versions of the new exemptions being drafted within the Trump Administration.  The final versions differed little from the leaked documents, enabling the ACLU to go ahead promptly with its lawsuit.


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