Court Issues Nationwide Injunction Against Expanded ACA Contraceptive Mandate Exemptions

In Commonwealth of Pennsylvania v. Trump, (ED PA, Dec. 15, 2017), a Pennsylvania federal district court granted a nationwide preliminary injunction  against enforcement of the Interim Final Rules issued by the Trump Administration in October (see prior posting) expanding exemptions from the ACA contraceptive coverage mandate for those with religious or moral objections.  First, in a lengthy discussion, the court concluded that Pennsylvania has standing to bring the challenge because of its "quasi-sovereign interest in safeguarding the health and wellbeing of its women residents," and because it will now "have to increase its expenditures for State and local programs providing contraceptive services."

The court, without reaching constitutional challenges, found that plaintiffs had shown a likelihood of success on the merits because of two types of violations of the Administrative Procedure Act: the government violated the APA's notice-and-comment requirements and the new rules are "arbitrary, capricious, or not in accordance with law."  Characterizing as "matryoshkanesque in its construction" the government's argument that it has statutory authority to bypass the notice-and-comment requirement, the court said: "The argument is creative, but not supported by law." Similarly the court rejected the government's argument that it had "good cause" to bypass the notice-and-comment requirement.

Examining whether the new rules are inconsistent with the Affordable Care Act, the court was particularly critical of the "moral exemption" rule, saying in part:

The Moral Exemption Rule allows any non-profit or for-profit organization that is not publicly traded to deny contraceptive coverage for its employees for any sincerely held moral conviction. This means that boards of closely held corporations can vote, or their executives can decide, to deny contraceptive coverage for the corporation’s women employees not just for religious reasons but also for any inchoate – albeit sincerely held – moral reason they can articulate. Who determines whether the expressed moral reason is sincere or not or, for that matter, whether it falls within the bounds of morality or is merely a preference choice, is not found within the terms of the Moral Exemption Rule. If one assumes that it is the Agency Defendants – or, indeed, any agency – then the Rule has conjured up a world where a government entity is empowered to impose its own version of morality on each one of us. That cannot be right.

The court went on to reject the government's argument that the new religious exemption is required by the Religious Freedom Restoration Act, citing cases in which the Third Circuit has found that the prior accommodation process governing religious objections did not impose a substantial burden on the exercise of religion.  Pennsylvania's attorney general issued a press release announcing the decision.  New York Times reports on the decision. [Thanks to Tom Rutledge for the lead.]