Analysis Law and Policy

A New Lawsuit Shows How Far Trump’s Agencies Will Go to Restrict Access to Birth Control

Lisa Needham

The lawsuit alleges that the University of Notre Dame improperly entered into a settlement agreement with the U.S. government that permits the school to deny its students, faculty, and staff contraceptive coverage, regardless of the rules of the ACA's birth control benefit.

Late last month, several women sued the University of Notre Dame over its refusal to allow individuals who participate in the university’s health-care plans to access birth control as legally mandated by the Affordable Care Act (ACA).

The lawsuit alleges that Notre Dame improperly entered into a settlement agreement with the U.S. government that permits the school to deny its students, faculty, and staff contraceptive coverage, regardless of the rules of the ACA’s birth control benefit. The lawsuit raises thorny questions of administrative law and shows just how far Trump’s agencies will go to restrict access to contraception, regardless of laws designed to stop them.

Many of the same plaintiffs, which include current students and a recent graduate, filed a similar lawsuit back in October 2017. That lawsuit challenged the fact that the Trump administration had issued interim final rules via the U.S. Department of Health and Human Services (HHS), among other agencies. Those rules, the plaintiffs alleged, created a broad religious exemption that essentially overruled the law by allowing universities, nonprofits, and for-profit businesses to deny contraceptive coverage. They also alleged that the rules had been improperly imposed; in other words, they said, the agencies didn’t go through the necessary process for creating new rules. Finally, that lawsuit also highlighted the settlements the Trump administration, at the behest of Attorney General Jeff Sessions, had made with Notre Dame and other nonprofits with religious affiliations.

A lot has happened since that October 2017 lawsuit, however, and the twists and turns tell a story of increasing difficulty in not only obtaining contraception, but even figuring out what Notre Dame’s policy on contraception is at any given moment.

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Two months after the initial lawsuit, two federal courts—one in Pennsylvania and one in California—invalidated the interim final rules and permanently enjoined the administration from enforcing them. In theory, Notre Dame was then required to continue providing contraceptive coverage via the accommodation carved out in the ACA: a religiously affiliated entity that objects to providing coverage does not have to do so, but does have to fill out an accommodation form to ensure that people receive the required reproductive care without shouldering additional costs. Before the injunctions, eight of nine federal appellate circuit courts had already rejected challenges to the rules, from institutions including Notre Dame. However, the government had already made little-broadcast settlement agreements with multiple institutions, Notre Dame among them, effectively reinforcing the final rules.

On October 27, 2017, immediately before lawsuit but two weeks after after the settlement agreement, Notre Dame announced that it was terminating coverage and would not accommodate students by filling out the trigger form to which it objected.  After significant outcry from faculty, staff, and students, the university reversed course, saying it would not interfere with having a third-party insurance company pay for reproductive health services for individuals covered under the school’s health-care plan.

In light of Notre Dame’s reversal, the plaintiffs in the October 2017 lawsuit requested that their cases be voluntarily dismissed, as they had now received the relief they wanted: that Notre Dame allow insurance coverage of reproductive health needs without passing co-pays or other costs along to students. (The Notre Dame plaintiffs had sued in an Indiana federal court; there was also a similar case in Washington, D.C.) The courts agreed to those dismissals on February 6 and 7, 2018. Notre Dame then immediately reversed course again. On February 7, it announced it would terminate insurance coverage for certain types of contraception.

In other words, Notre Dame appears to have only claimed it would cover contraception long enough to get the plaintiffs to dismiss their lawsuit.

This move would force the plaintiffs, among thousands of other Notre Dame students and employees, to absorb the costs of co-pays and other insurance payments. The plaintiffs in the lawsuit estimate their costs would range from a 20 percent co-payment for birth control pills to several hundred dollars for co-insurance for long-term contraception such as a NuvaRing, to possibly receiving no coverage at all for related services like education and counseling.

In doing all this, Notre Dame chose to ignore both the December 2017 injunction blocking the interim final rules and its own earlier loss in court.

And as it’s gone on, faculty, students, and staff at Notre Dame remain uncertain as to the scope of their contraception coverage. In February 2018, Notre Dame’s president said the government had given it and its third-party insurers an exemption from providing all FDA-approved birth control, but wasn’t clear as to what methods would be covered and which wouldn’t. In March 2018, the university issued a FAQ explaining there would be no coverage for copper IUDs or emergency contraception. It went on to explain that although the university says it will cover some methods of contraception, students will still need to pay out-of-pocket costs like co-pays, which flies in the face of the ACA rules. The FAQ also explains that insurance will pay for “counseling and instructional office visits,” but only as they relate to “natural” family planning. Finally, “certain IUDs and contraceptive implants” are covered, but it doesn’t say which ones.

Notre Dame made these moves because it alleged that its October 2017 settlement agreement with the government gave it the power to ignore the injunction against the interim final rules and the court ruling against it specifically. The “settlement” of the settlement agreement was that the government agreed to, functionally, allow Notre Dame to win its longstanding fight to be entirely exempt from providing contraceptive coverage. The language is so broad, simply declaring that Notre Dame is exempt from any ACA contraception mandates, that any non-governmental entity—nonprofits, for-profits, or any other type of organization—could demand that same exemption, even if they expressed only a loosely framed “moral objection.”

It’s a breathtaking expansion of agency power: to operate in relative silence and simply “settle” issues in the way the administration wants, even if it runs counter to the law.

And as the Notre Dame lawsuit points out, the settlement agreement basically imposes conditions on the plaintiffs—robbing them of their right to contraceptive coverage—without allowing them to be party to that agreement. Contract law does not generally allow parties to a contract to bind non-parties to the conditions of that contract, but that’s exactly what happened here.

This settlement agreement also goes beyond Notre Dame; it applies to roughly 70 other institutions, including universities, children’s homes, and charities, among others.

This is why the June lawsuit is against HHS, the Department of Labor, and the Department of the Treasury in addition to Notre Dame. (All three of those agencies executed the settlement agreement).

This lawsuit takes a variety of approaches to this issue. First, it alleges that the government’s actions in creating the settlement violate the Administrative Procedures Act (APA). The APA governs how regulations are issued and requires agencies to follow the dictates of courts when applicable.

In 2016, the Supreme Court indicated to the government and Notre Dame that the university’s desire to be exempt from even the meager duty of form-signing could only be accomplished if it ensured “that women covered by [the entities’] health plans receive full and equal health coverage, including contraceptive coverage.” By entering into a settlement agreement that did just the opposite, the government appears to have violated the APA.

Plaintiffs are also alleging an additional violation of the APA: Rules cannot be “arbitrary and capricious.” In other words, rules can’t be issued based on the whims of the government. There’s typically an extensive period of public comment so the public can review and weigh in on the rules. None of that happened when the Trump administration issued the interim final rules.

The lawsuit also alleges that the government agencies, in issuing the interim final rules and entering into settlement agreements, violated some provisions of the U.S. Constitution. They violated the Establishment Clause of the First Amendment by issuing rules and settlement agreements that have the effect of promoting and advancing religions that disfavor contraception. Because of that, the government is effectively imposing religious beliefs on the plaintiffs—beliefs they must now adhere to because their access to contraception is blocked.

The government’s actions may also violate the Due Process Clause of the Fifth Amendment. That clause requires the government to give notice to individuals when it will deprive them of their rights. It also requires a compelling reason to do so. Here, the plaintiffs and all other affected Notre Dame health plan participants had no notice of, nor ability to weigh in on, the rules or the settlement agreement. Additionally, the government has provided no compelling reason that it must ignore the laws as they stand and issue agreements to the contrary.

There’s also an allegation that the government violated the other clause of the Fifth Amendment: the Equal Protection clause. It impermissibly targets women, who disproportionately need contraception.

Finally, the lawsuit alleges that both Notre Dame and the government defendants entered into a settlement agreement that is itself is illegal and must be voided. The agreement runs contrary to federal court decisions, federal laws, and several provisions of the Constitution. If the settlement agreement is voided, Notre Dame could no longer rely upon it and would have to return to providing contraceptive coverage via its third-party insurer.

A favorable decision for the plaintiffs could have two key effects: First, of course, it would restore contraception access for thousands of individuals on Notre Dame health care plans. Equally important, however, is that a decision could be crafted to restrict the Trump administration from further settlement agreements that fly in the face of laws and rules. Because of that, this lawsuit is one to watch carefully.

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