Constitution Daily

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New limits on birth control blocked

January 14, 2019 by Lyle Denniston


One day before the Trump Administration was to begin enforcing sweeping new limits on women’s access to free birth-control devices and techniques, a federal trial judge in California temporarily blocked the restrictions because of doubts about their legality. The ruling is the latest chapter in the eight-year legal drama over the right to contraceptives created by the Obama Administration under the Affordable Care Act (“Obamacare”).

The order issued Sunday by U.S. District Judge Haywood S. Gilliam, Jr., of Oakland is not nationwide in scope, but it does apply to 13 states – from coast to coast – and Washington, D.C. The judge found that the new restrictions would deprive “tens of thousands” of women workers and women students of the protection of the ACA’s contraceptive mandate.

The legal fight over that mandate has gone twice to the Supreme Court, without a final resolution, and seems certain to return to the Justices at some point in the future.

The Obama Administration defended the mandate in the two prior rulings by the Justices, partially fending off challenges by religious non-profit hospitals, colleges and schools but partially losing to a challenge by profit-making businesses that are owned by only a few persons with strong religious objections to contraceptives.

The Trump Administration began a legal attack on the birth-control mandate not long after it took office in 2017. It issued a new series of interim restrictions in October 2017, but those have been blocked across the country by lower court orders – including an earlier one by Judge Gilliam in Oakland.

The interim rules might have reached the Supreme Court after Judge Gilliam’s earlier bar on enforcement was upheld in most respects last month by the U.S. Court of Appeals for the Ninth Circuit. But those interim rules have now been displaced by a set of final rules – adopted last November and scheduled to go into effect today, Monday.

Because of Judge Gilliam’s new decision Sunday night, the final rules will not go into effect in 13 states and the nation’s capital, the only ones to which his ruling directly applies. Judges elsewhere in the nation are considering similar legal challenges to the final rules.

In his temporary decision, the Oakland judge said there was at least “serious concern” that a sweeping new rule for religious objectors would be ruled – after the full trial that has yet to be held – to be a violation of the ACA mandate, to be permissible under constitutional or federal statutory protections for religious freedom, and to be a violation of federal administrative law because they were adopted with no prior input from the general public. The judge told everyone involved that he plans to move the case rapidly toward a trial and final ruling on all of the challenges to the rules.

The judge was even more critical of the Trump Administration’s separate set of restrictions, adopted at the same time as the new religious exemption, to grant a wide-ranging exemption to the mandate for non-profit organizations that had moral but not religious objections to contraceptives. The morality-based exemptions were a new creation of the Trump Administration; the Obama Administration had only allowed exemption for religious organizations.

Judge Gilliam found that there was nothing in the ACA itself or any other federal law that gave the government the authority to create a new morality-based exemption from the mandate. In fact, the judge said, Congress had explicitly rejected a proposed amendment to the mandate to allow an exemption based on claims of “conscience.”

The Trump Administration mounted a full defense of all of the new final rules in the case before Judge Gilliam, arguing among other points that the ACA itself did not even mandate protection for free access to contraceptives so the Obama Administration had no legal authority to create a mandate by agency regulations. The Trump legal team also argued that the Religious Freedom Restoration Act required a broad exemption for religious objectors among both non-profit and profit-making entities.

Without ruling in a final way on those points and others, Judge Gilliam said he found at least “serious concerns” with those and other government defenses of the new final rules as they expanded the religious exemption well beyond what the Obama Administration had created.

Under the new final rules, religious non-profit and profit-making entities did not have to inform the government in any way of their religious objections to contraceptive methods, but could simply refuse to provide their employees or students with access. They did not have an obligation even to tell their workers or students of the denial of access. Their health insurers need not step in to provide the coverage, unless they did so voluntarily, under the new rules. Under the Obama-era rules, the insurers had to pick up the obligation if the religious entity claimed an exemption.

The last time the ACA birth-control mandate question was before the Supreme Court, the Justices in May 2016 settled no part of the legal dispute, but ordered all of the lawyers involved in a lengthy list of cases to return to the negotiating table to see if they could find a way to resolve the religious issues. That effort was ultimately pronounced to be a failure by the Obama Administration. In one of its final actions, in January 2017, the Administration declared that there appeared to be “no feasible approach” to protect religious objectors at the same time that women of child-bearing age were assured of access to contraceptives.

While Judge Gilliam’s ruling was temporary only, it is in a form that the Trump Administration would be free to appeal to the Ninth Circuit Court. The Administration would have the option, which it has tried with other major legal controversies over its policies, to ask the Supreme Court to rule directly on the dispute without waiting for any rulings by the Ninth Circuit Court or other federal appeals courts.

Judge Gilliam was the first federal judge to rule, even though only temporarily, on the final rules that were set for enforcement starting today.

Lyle Denniston has been writing about the Supreme Court since 1958.  His work has appeared here since mid-2011.


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