Yesterday, the Department of Health and Human Services along with several other federal agencies filed a 147-page release (full text) proposing rule changes to the Trump Administration's exemptive rules under the Affordable Care Act for employers and universities with objections to furnishing employees and students coverage for contraceptive services. The proposed rule changes would eliminate the current exemption for employers and schools that have moral, as opposed to religious objections. The new rules would retain the exemption for employers and universities with religious objections. However, under new arrangements, their employees and students could, in addition to existing options, obtain contraceptive services through an individual contraceptive arrangement with another provider, and without any involvement on the part of the employer or university with religious objections. The Center for Medicare and Medicaid Services issued a press release explaining the proposed rules, and CNN reports on the proposals.
Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Tuesday, January 31, 2023
Sunday, December 25, 2022
FDA Approves Label Change for Plan B Emergency Contraceptive: Not an Abortifacient
The U.S. Food and Drug Administration announced on Friday that it has approved a labeling change for the emergency contraceptive Plan B One-Step, sometimes known as the morning-after pill. The labeling change states clearly that the medication is not an abortifacient. The FDA says in part:
Plan B One-Step will not work if a person is already pregnant, meaning it will not affect an existing pregnancy. Plan B One-Step prevents pregnancy by acting on ovulation, which occurs well before implantation. Evidence does not support that the drug affects implantation or maintenance of a pregnancy after implantation, therefore it does not terminate a pregnancy.
The original label had been required to say in part: "this product works mainly by preventing ovulation (egg release). It may also prevent fertilization of a released egg (joining of sperm and egg) or attachment of a fertilized egg to the uterus (implantation)."
The FDA supports its conclusion that it does not affect implantation with a detailed Decisional Memorandum discussing more recent studies of the drug.
In the extensive litigation challenging rules under the Affordable Care Act that mandated health insurance policies cover contraceptive methods for women, religious objectors had pointed to Plan B as one of the medications that they considered an abortifacient because it could prevent implantation of a fertilized egg. Also, since the Supreme Court's Dobbs case, abortion bans in some states might possibly be broad enough to cover medication that prevents implantation.
In a 2015 Memorandum, relying on research available at that time, the Catholic Medical Association rejected the use of Plan B even after a rape. AP reports on the FDA's approval of the labeling change.
Tuesday, August 16, 2022
HRSA Wrongly Eliminated Required Insurance Coverage For Natural Family Planning Methods
In Tice-Harouff v. Johnson, (ED TX, Aug. 12, 2022), a Texas federal district court held that changes in the language of federal regulations specifying the required cost-free contraceptive coverage by qualified health plans eliminated coverage for fertility-awareness based methods. These natural family planning methods are used, among others, by women with religious objections to use of contraceptives. The court held that the Health Resources and Services Administration violated the Notice and Comment requirement of the Administrative Procedure Act in adopting the amendments and that the amendments were arbitrary and capricious. The court rejected the government's claim that the change in language had not eliminated coverage for such methods. ADF issued a press release announcing the decision.
Friday, August 13, 2021
Court Dismisses Challenge To Contraceptive Mandate Exemption for Notre Dame
In Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, (ND IN, Aug. 12, 2021), an Indiana federal district court dismissed a suit challenging rules, as well as a settlement agreement, exempting Notre Dame University from the contraceptive coverage mandate of the Affordable Care Act. The court said in part:
With the Rules having been upheld by the Supreme Court, I can’t really say that the Settlement Agreement itself is causing injury to the Plaintiffs because the same result the Settlement Agreement provides Notre Dame (exempting it from the contraceptive coverage mandate) is equally provided by the Rules (the validity of which were upheld). The challenge to the Settlement Agreement “is not ripe for adjudication [because] it rests upon contingent future events that may not occur” - i.e., the speculative possibility that the exemption might be invalidated at some point in the future.
The court, relying on the Supreme Court's Little Sisters of the Poor decision and a Massachusetts federal district court case, also held that the rules creating religious exemptions from the contraceptive coverage mandate do not violate the Establishment Clause.
Friday, January 22, 2021
Expanded Contraceptive Mandate Exemptions Again Upheld
Last July in Little Sisters of the Poor v. Pennsylvania, the U.S. Supreme Court rejected two kinds of challenges to the Trump Administration's expanded conscience exemptions from the Affordable Care Act's contraceptive coverage mandate. the Court held that the relevant federal departments had authority to promulgate the rules, and that the procedural process used to adopt the rules was valid. The case was remanded for consideration of any other issues. (See prior posting.) Now in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (D MA, Jan. 15, 2021), a Massachusetts federal district court on remand held that the expanded exemptions are not arbitrary and capricious, and do not violate either the Establishment Clause or the Equal Protection guarantee of the 5th Amendment. In rejecting the Establishment Clause challenge, the court said in part:
Permitting entities to practice their beliefs as they would in the absence of the relevant government-imposed regulations does not, in this instance, rise to an unconstitutional violation of the Establishment Clause.
Thursday, July 09, 2020
Supreme Court GVR's 3 Challenges To Contraceptive Mandate Exemptions
Wednesday, July 08, 2020
Supreme Court Upholds Expanded Exemptions From ACA Contraceptive Coverage Mandate
The Departments also contend, consistent with the reasoning in the 2017 IFR and the 2018 final rule establishing the religious exemption, that RFRA independently compelled the Departments’ solution or that it at least authorized it. In light of our holding that the ACA provided a basis for both exemptions, we need not reach these arguments. We do, however, address respondents’ argument that the Departments could not even consider RFRA as they formulated the religious exemption from the contraceptive mandate. Particularly in the context of these cases, it was appropriate for the Departments to consider RFRA.The Court also rejects challenges to the procedural process used to adopt the rules-- including the claim that the Departments did not maintain an open mind in considering comments on the rules before their adoption in final form, saying in part:
We decline to evaluate the final rules under the open-mindedness test. We have repeatedly stated that the text of the APA provides the “‘maximum procedural requirements’” that an agency must follow in order to promulgate a rule.Justice Alito, joined by Justice Gorsuch, filed a concurring opinion, saying in part:
I would hold not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption (or something very close to it). I would bring the Little Sisters’ legal odyssey to an end.Justice Kagan, joined by Justice Breyer, concurred in the judgment, filing an opinion agreeing that the Departments had statutory authority to differentiate among health plans, but concluding that petitioner's challenge that the Departments' actions were arbitrary and capricious remain open upon remand:
That issue is now ready for resolution, unaffected by today’s decision. An agency acting within its sphere of delegated authority can of course flunk the test of “reasoned decision making.”... The agency does so when it has not given “a satisfactory explanation for its action” .... Assessed against that standard of reasonableness, the exemptions ... give every appearance of coming up short.Justice Ginsburg filed a dissenting opinion, joined by Justice Sotomayor, saying in part:
In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs.... Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.CNN reports on the decision.
Friday, May 08, 2020
Church Lacks Standing To Challenge State's Insurance Coverage Mandate
Cedar Park has failed to establish that any injury is fairly traceable to SB 6219. When Cedar Park needed to renew its health insurance plan on September 1, 2019, there was no product in the marketplace that complied with Cedar Park’s preferred requirements. Cedar Park has failed to establish that this absence of a product was because of SB 6219. In fact, Cedar Park’s previous plan did not conform to its beliefs despite SB 6219 not having legal effect when Cedar Park purchased that plan. Now, Providence offers what appears to be an acceptable product despite the continued applicability of SB 6219. Thus, Cedar Park has failed to establish an injury or an injury that is fairly traceable to SB 6219.
Wednesday, May 06, 2020
Supreme Court Will Broadcast Contraceptive Mandate Case Arguments Today In Real Time
Sunday, January 19, 2020
Claims Against Notre Dame and Feds Over Contraceptive Coverage Move Ahead
There are really two separate disputes at play here. The first involves a challenge to regulations that would allow Notre Dame to declare itself exempt from the Women’s Health Amendment of the Patient Protection and Affordable Care Act (“ACA”)....
The second part of this case presents a [new] wrinkle.... [A] week after issuing the interim final rules..., the Federal Defendants executed a private settlement agreement with Notre Dame exempting the university from all existing and future requirements with respect to contraceptive coverage. Notre Dame did not seek input from its students or faculty before entering into the settlement agreement. The Plaintiffs in this case — Irish 4 Reproductive Health (an association of Notre Dame students), Natasha Reifenberg, and Jane Does 1-3 — claim this backroom deal is illegal and unconstitutional.The court refused to dismiss plaintiffs' claims that the settlement agreement and the exemptive rules violate the Administrative Procedure Act and the Establishment Clause of the 1st Amendment. However the court did dismiss due process and equal protection challenges. (See prior related posting.)
Friday, January 17, 2020
Supreme Court Grants Review In Contraceptive Mandate Exemption Case
Wednesday, October 02, 2019
Cert. Filed By Little Sisters of the Poor Over Contraceptive Mandate Exemption
1. Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court?
2. Whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage?Becket issued a press release announcing the filing of the cert. petition.
Monday, August 05, 2019
Preliminary Injunction Denied In Challenge To Conscience Provisions In Insurance Law
Cedar Park has not provided evidence that insurance costs are in fact calculated or charged in a manner to which it has a religious objection...The court also dismissed on ripeness grounds, saying that plaintiff "cites no communications from or statements of the State which could form the basis of Cedar Park’s belief that it will be subject to enforcement..." The court however allowed plaintiff to file an amended complaint contending that it is treated less favorably than religious organizations which are health care providers, carriers, and facilities.
Thursday, July 18, 2019
Conservatives Oppose Trump's 5th Circuit Nominee Because of His Contraceptive Mandate Decision
Monday, July 15, 2019
3rd Circuit Affirms Injunction Against Expanded Contraceptive Mandate Exemptions
The Agencies’ effort to cast RFRA as requiring the Religious Exemption is also incorrect. Even assuming that RFRA provides statutory authority for the Agencies to issue regulations to address religious burdens the Contraceptive Mandate may impose on certain individuals, RFRA does not require the enactment of the Religious Exemption to address this burden....
RFRA does not require the broad exemption embodied in the Final Rule nor to make voluntary a notice of the employer’s decision not to provide such coverage to avoid burdening those beliefs.The Hill reports on the decision and says that an appeal to the Supreme Court is likely.
Monday, June 17, 2019
Certiorari Denied In Contraceptive Mandate Case
Wednesday, May 22, 2019
3rd Circuit Hears Arguments In Contraceptive Mandate Case
Friday, March 29, 2019
Court Enjoins Obama-Era Contraceptive Mandate Accommodation
Given the uncertainty presented by the legal challenges to the IFR, I find and conclude that a permanent injunction is proper.Colorado Springs Gazette reports on the decision.
Tuesday, January 15, 2019
Court Enjoins Broadened Contraceptive Mandate Exemptions
The Final Rules—just as the IFRs before them—exceed the scope of the Agencies’ authority under the ACA, and, further, cannot be justified under RFRA.A California court issued a similar, but more limited injunction on Sunday. (See prior posting.) Washington Examiner reports on the decision.