Why I’m Optimistic That Courts Will Stop the Unlawful Final Trump-Pence Birth Control Rules From Taking Effect
By Michelle Banker, National Women’s Law Center
Given the flurry of Trump-Pence administration efforts to roll back birth control coverage and the confusing court decisions about the ACA and the birth control benefit in the news late last week, you may be worried about the future of your birth control coverage. Let’s be clear: The ACA is still the law of the land. And the requirement that plans cover birth control without out-of-pocket costs also is still the law of the land. But the Trump-Pence administration continues to try to tear down the protections of the ACA, and several states and advocacy groups, including the National Women’s Law Center, are continuing to fight them in court.
In October 2017, the Trump-Pence administration issued two “interim final rules” that allow virtually any employer or university to deny insurance coverage of birth control to employees and students based on religious or “moral” beliefs. Two federal courts, one in Pennsylvania and another in California, blocked those rules in December 2017 in cases brought by state attorneys general. The courts both concluded that the way the administration issued those interim final rules – without first seeking comments from the public – was likely unlawful. The court in Pennsylvania went even further, rightly holding that the rules were also likely unlawful because their expansive exemptions are not authorized by the ACA or by any other law. In other words, the interim final rules are both procedurally and substantively flawed.
Instead of backing down, the Trump-Pence administration doubled down and in November 2018 finalized those rules, despite the fact that they were blocked by two courts. The final rules are mostly the same as the interim final rules and are unlawful for the same reasons that the interim final rules were unlawful. The Trump-Pence administration is planning for the final rules to supersede the interim final rules and go into effect on January 14, 2019, unless a court steps in to block them first.
What Happened Late Last Week
What happened late last week in the courts offers good reason to be optimistic that these harmful and discriminatory final rules will be blocked before January 14.
In the Pennsylvania case: On Friday, the same federal court in Pennsylvania that found that the interim final rules were likely unlawful issued a decision allowing Pennsylvania to amend their complaint to challenge the final rules and seek a preliminary injunction to block the final rules as well. Pennsylvania (now joined by New Jersey) filed an amended complaint the same day, and the court said it will hold a hearing January 10 on whether to block the final rules. The court told the parties that it will try to issue a decision before January 14.
In the California case: A federal appeals court, the U.S. Court of Appeals for the Ninth Circuit, issued an opinion last Thursday confirming that the Trump-Pence administration likely acted unlawfully in issuing the interim final rules and that the states of California, Delaware, Maryland, New York, and Virginia have the right to challenge the rules in court (in lawyer-speak, this means that they have “standing” to challenge the rules). What the Ninth Circuit decision means is that the states can go back to the lower federal court in California and ask it to block the final rules before January 14. California (now joined by Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maryland, Minnesota, New York, North Carolina, Rhode Island, Vermont, Virginia, and Washington) filed an amended complaint Tuesday. The lower court scheduled a hearing for January 11 on whether to block the final rules. (Notably, the Ninth Circuit also decided that the lower court in California went too far by blocking the interim rules nationwide, and so it is possible that the lower court may block the final rules just in the states that are suing).
The bottom line is that the interim final rules remain blocked, both for the states that sued and nationwide. And we should have a decision about the new final rules before they would take effect.
The National Women’s Law Center amended its own lawsuit to challenge the illegal new final rules earlier this month and continues to support the efforts of the states. We will not stop fighting to protect the ACA and its birth control benefit, which is essential to the health and well-being of millions of individuals and families nationwide.