I Can’t Believe It’s 2019 and We’re Still Arguing About the Birth Control Benefit (Updated)

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Analysis Contraception Conundrum

I Can’t Believe It’s 2019 and We’re Still Arguing About the Birth Control Benefit (Updated)

Imani Gandy

Regulations that would undercut the birth control benefit are set to go into effect January 14—but not if a handful of states have anything to say about it in federal court this week.

UPDATE, January 14, 4:22 p.m.: On Monday, Pennsylvania Attorney General Josh Shapiro announced that a federal judge had granted a nationwide injunction preventing President Donald Trump’s final rules regarding the birth control benefit from taking effect.

UPDATE, January 14, 10:01 a.m.: On Sunday evening, a federal judge blocked the Trump administration’s regulations from taking effect today in 13 states—California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Minnesota, New York, North Carolina, Rhode Island, Vermont, Washington, and Virginia—and Washington, D.C. As of Monday morning, the federal court in Pennsylvania had not yet ruled on a challenge to the administration’s rule changes.

The Trump administration is attempting to torpedo the birth control benefit under the Affordable Care Act (ACA) by issuing regulations that render it utterly toothless. These regulations, which could effectively allow employers to deny contraceptive coverage without co-pay to anyone they please, are set to go into effect January 14—but not if a handful of states led by California and Pennsylvania have anything to say about it in federal court this week.

Attorneys for California and Pennsylvania–and the states that are suing in concert with them—argue that the Trump administration’s proposed regulations, known in legal circles as interim final rules or IFRs, have violated the requirements contained in the Administrative Procedure Act (APA). They also say the IFRs harm the states and their residents.

The IFRs followed an executive order called Promoting Free Speech and Religious Liberty that Trump issued in May 2017. That order directed certain federal agencies to address conscience-based objections to the birth control benefit. In keeping with this directive, two sets of interim final rules were issued in October 2017, as reported by Christine Grimaldi and Jessica Mason Pieklo.

These IFRs are draconian and a drastic departure from contraception-friendly Obama-era regulations. They allow organizations, regardless of whether they are religiously affiliated, to bow out of providing contraceptive coverage to their employees for practically any religious or moral reason. In addition, the IFRs make optional the accommodation that the Obama administration spent years litigating and crafting. (That accommodation permits religious objectors to opt out of providing contraceptive coverage so long as they notify their insurer, so that the insurer can step in and provide contraceptive coverage to the religious objector’s employees.)

The exemptions set forth in the IFRs are so broad that they swallow the birth control benefit entirely.

The states leading the charge to save the benefit argue that these IFRs aren’t just unlawful themselves (because they are in legal parlance “arbitrary and capricious”); they also say the Trump administration flouted the legal norms and procedures that govern administrative rulemaking when it issued them.

Under the APA, federal agencies that wish to implement new rules and regulations must first provide what is known as a notice-and-comment period, during which the public can offer its input about the proposed regulations. The agencies must also seriously take into account the comments made by the public. The states argue that the Trump administration has not done so; the administration has ignored studies about the efficacy of contraception, they say, and has even drastically underestimated in the IFRs the number of women who would be negatively affected should the final rules go into effect.

Moreover, according to the complainant states, the administration has based its revocation of access to contraception not on science and medicine, but solely upon the idea that some people simply have sincere religious or moral objections to it and that should be the end of the discussion.

The states were initially successful in blocking the rules: a federal court in Pennsylvania and another federal court in California issued nationwide injunctions blocking the regulations in late 2017. (The Ninth Circuit would later narrow the injunction issued in the California case to cover only the five states involved in the California lawsuit rather than the entire country.)

But before the lawsuits could be resolved—and a final determination made about the lawfulness of the IFRs—the Trump administration issued slightly worse final rules and declared that these final rules would go into effect on January 14. This left the states rushing to file amended complaints challenging the final rules while they were still litigating their claims about the interim final rules.

These final rules, if you’re wondering, are even worse than the IFRs: They exempt more employers from the birth control benefit. But because they’re slightly different from the IFRs, states like California and Pennsylvania have to argue for them to be blocked all over again.

If the rules go into effect next week, a nationwide contraceptive coverage crisis will ensue: Some employees will be able to obtain contraceptive coverage due to state laws that require employers to provide it, while employees in other states will not. This will create a patchwork approach that will base access to contraceptive coverage on geography. That’s not how the birth control benefit is supposed to work.

If your eyes have glazed over by now, not to worry—the litigation is messy with a lot of moving parts. Still, it is important to understand it because it just may determine whether or not Trump can strip millions of people of the contraceptive coverage to which they are entitled under the ACA.

So let’s start with a brief refresher on the birth control benefit and its history.

The birth control benefit initially proposed in 2012 required that employers include coverage of FDA-approved contraceptives without co-pay. The mandate sent the religious right into a frenzy, and that frenzy has not abated for nearly eight years. Lawsuits challenging the birth control benefit have been filed by the dozens on behalf of organizations ranging from for-profit corporations like Hobby Lobby, to religiously affiliated schools like the University of Notre Dame, to Little Sisters of the Poor, a Catholic charity comprised of nuns who have become the face of such litigation.

The most notable among these lawsuits is Burwell v. Hobby Lobby, the 2014 decision that grants employers the right to deny insurance coverage for contraception citing religious beliefs. Still, the Court made it clear in that case and in a subsequent case, Zubik v. Burwell, that the government should ensure that women should “receive full and equal health coverage, including contraceptive coverage.”

This mattered to Obama. It doesn’t seem to matter to Trump.

Under the Obama administration, agencies attempted to balance the contraceptive coverage needs of employees against the concerns of various religiously affiliated organizations who balked at providing their employees such coverage. In an effort to calm the waters, the Obama administration compromised and compromised again—so much so that it drove me bananas—so it could accomplish its goal of providing contraception to patients without co-pay but also remain respectful of the religious objectors’ beliefs. Churches and houses of worship would be entirely exempt. For those religiously affiliated organizations that were not exempt from the birth control benefit, the administration came up with an accommodation: They would be able to opt out of the birth control benefit by telling their insurer (or third-party administrator, if they were self-insured) that they plan to opt out, in which case the insurer (or third-party administrator) would do so. At first, the Obama administration said that these religious groups could opt out of the birth control benefit by filling out a form. But they didn’t want to fill out a form. So the Obama administration acquiesced (again), and informed these groups that they could just notify their insurer.

But the birth control naysayers didn’t want to do that either.

What seemed like a perfect solution to the problem was, according to these religious groups, further complicity. They didn’t want to have to notify their insurer that they object to contraception coverage because if they did, then the insurer would step in to provide contraceptive coverage, and that’s “material cooperation with evil.” It’s the same as if they were selling birth control pills in vending machines in the break room.

The Obama administration never was able to find a compromise that would appease religious groups while preserving contraceptive access, and the Trump administration isn’t even trying. The current administration is not interested in preserving contraceptive access. Instead, the administration has given the religious right everything that they wanted: IFRs that permit a full religious or moral exemption from the birth control benefit.

It’s all very confusing and wonky, and you may have already fallen asleep reading this. But it’s important to understand, because the APA’s notice-and-comment requirements exist in part so members of the public—like you, reader—will have input on regulations that affect whether you can access contraception through your employer health plans.

The Trump administration does not seem to care about the rule of law or procedural norms. Indeed, the administration seems to thrive on the chaos and the misinformation. And the administration is certainly not bothered by the consequences of stripping millions of women of contraceptive coverage.

Whether or not the courts rein Trump in remains to be seen.

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