State AGs Seek To Enjoin Final Broad ACA Exemptive Rules On Contraceptives

Attorneys general from 14 states have filed a motion for a preliminary injunction in a California federal district court against various federal departments.  The motion seeks to prevent Trump Administration rules expanding religious and moral exemptions from the Affordable Care Act contraceptive coverage mandate from taking effect. The motion and memorandum in support (full text) in State of California v. Azar, (ND CA, filed 12/19/2018) contends that the new rules are contrary to the text and purpose of the Affordable Care Act and were adopted without meeting Administrative Procedure Act requirements. Interim Final Rules similar to the Final Rules at issue in the case have already been enjoined by the courts. (See prior posting.)  Consumer Affairs reports on the preliminary injunction motion.

9th Circuit: Limited Injunction Against Interim Contraceptive Coverage Rules Upheld

In State of California v. Azar, (9th Cir., Dec. 13, 2018), the U.S. 9th Circuit Court of Appeals in a 2-1 decision affirmed in part a preliminary injunction issued by a California federal district court against enforcement of the Trump Administration's Interim Final Rules expanding religious and moral exemptions to the Affordable Care Act Contraceptive Coverage Mandate. The preliminary injunction, however, will likely have a limited effect.  Final rules similar to the interim ones have been issued and will become effective Jan. 14, 2019.  The basis for the district court's preliminary injunction was noncompliance with the Administrative Procedure Act's notice and comment requirements in adoption of the interim rules. When the final rules take effect, the problematic interim rules will disappear.  The 9th Circuit also held that the district court's injunction was too broad. It should have covered only enforcement against the five states that were plaintiffs (California, Delaware, Virginia, Maryland New York), rather than being a nation-wide injunction.

Judge Kleinfeld dissented arguing that the states lack standing to bring the suit because their injuries were self-inflicted. The injury to the states came from their decisions to grant contraceptive benefits to employees whose employers were exempted by the interim rules. Reuters reports on the decision.

Another Court Enjoins Enforcement of Contraceptive Mandate Against Religious Non-Profits

In yet another case, after the Trump Administration has taken the position that the Obama era contraceptive coverage mandate under the Affordable Care Act violates the religious freedom rights of objecting religious non-profits, a court has enjoined enforcement of the mandate.  In Association of Christian Schools International v. Azar, (D CO, Dec. 10, 2018), a Colorado federal district court held that the mandate violates plaintiffs' rights under RFRA. The Hill reports on the decision. The Trump Administration's new rules exempt objecting religious non-profits.

Another Contraceptive Coverage Mandate Case Is Settled

Another of the challenges by religious non-profits to the Obama administration's Affordable Care Act contraceptive coverage mandate has been disposed of by the courts.  The Trump administration has expanded the exemption available for those with religious or moral objections to the mandate and numerous of the cases have already been, with the acquiescence of the government, decided in favor of the objectors. In the latest, the 11th Circuit has issued an order (full text) in Eternal Word Television Network, Inc. v. Secretary of the U.S. Department of Health and Human Services, (11th Cir., Nov. 29, 2018), vacating the district court's order granting partial summary judgment to defendants and remanding the case.  As explained in a press release from ETWN:

Following the Supreme Court’s decision in Zubik, the Court of Appeals vacated its own negative order against EWTN on May 31, 2016.  The court’s order asked for further briefing on the matter while the parties worked toward a settlement. 

Attorneys for EWTN and the Department of Justice negotiated terms of a settlement under which the government agreed not to enforce the contraceptive mandate against the network, and that EWTN would ask the 11th Circuit Court of Appeals to vacate the District Court’s decision. The 11th Circuit granted that request on Nov. 29.

Proposed HHS Rule Will Give Contraceptive Alternative To Women Excluded By Employers' Religious Objections

The New York Times reported yesterday that the Department of Health and Human Services has issued a new proposed rule that would blunt the impact of its recent final rules allowing employers to assert religious or moral objections to furnishing contraceptive coverage in their health plans. Under the proposed rule, any woman denied coverage from her employer because of the employer's religious or moral objections would be eligible for the family planning program for low income families offered under Title X of the Public Health Service Act, regardless of the woman's actual income. [Thanks to Steven H. Sholk for the lead.]

Trump Administration Finalizes Broadened Contraceptive Mandate Exemptions

In two releases yesterday, the Health and Human Services Administration, jointly with the IRS and Department of Labor, issued final rules making permanent (with minor changes) the interim final rules issued last October expanding exemptions from the contraceptive coverage mandate under the Affordable Care Act. One release (full text) finalizes exemptions for various entities and individuals with religious objections to providing coverage for some or all contraceptive or sterilization methods. The other release (full text) finalizes exemptions for entities and individuals with moral objections to providing such coverage. The final rules will become effective on Jan. 14, 2019.  Last December, two federal district courts issued nationwide preliminary injunctions against enforcing the interim final rules. RNS reports on the new rules.

9th Circuit Hears Oral Arguments In Challenge To Expanded Contraceptive Coverage Exemptions

Last week, the U.S. 9th Circuit Court of Appeals heard oral arguments in State of California v. Little Sisters of the Poor. (Video of full oral arguments). The case involves the appeal by a religious order (as an intervenor) of a nationwide preliminary injunction that a California federal district court issued blocking the Trump administration's Interim Final Rules expanding religious and moral exemptions from the Affordable Care Act's contraceptive coverage mandate. (See prior posting.) According to Courthouse News Service,  two of the three judges on the panel indicated during oral argument that they were inclined to lift the injunction. [Thanks to Blog from the Capital for the lead.]

Teacher Lacks Standing To Challenge Contraceptive Mandate Exemptions

In Campbell v. Trump, (D CO, Sept. 11, 2018), a Colorado federal district court held that a teacher in a private school lacks standing to challenge the Trump administration rules that allow employers to refuse on religious or moral grounds to provide health insurance coverage for contraceptive services. Plaintiff currently has coverage in her employer's policy but argues that she fears her employer might withdraw coverage.  The court held:

There are no factual allegations in the complaint that support an inference that injury to plaintiff, economic or otherwise, is “actual and imminent” as required to constitute an injury in fact under Article III standing principles.

Court Awards Attorneys' Fees In Contraceptive Mandate Case

In Catholic Benefits Association LCA v. Azar, (WD OK, Aug. 15, 2018), an Oklahoma federal district court awarded attorneys' fees that were dramatically lower than requested by plaintiff's counsel.  The case was one of the lengthy challenges to the Obama Administration's contraceptive coverage mandate's applicability to religious non-profit organizations.  Plaintiffs' counsel requested $3.1 million in fees. In a 36-page opinion, the court ultimately awarded $718,607 in fees and expenses.

Another Injunction Against ACA Contraceptive Mandate

Following the lead of a number of other courts, this week a Florida federal district court in Ave Maria School of Law v. Azar, (MD FL, July 11, 2018) reopened a case and granted a permanent injunction against enforcing the contraceptive coverage mandate against Ave Maria. The injunction applies to the requirement to provide insurance coverage for sterilization and contraceptive drugs, devices, or procedures to which the Catholic school has religious objections.  The Trump Administration has conceded that applying the Obama Administration's accommodation rules to religious non-profits would violate the Religious Freedom Restoration Act. ADF issued a press release announcing the decision.

Another Religious College Gets Relief Against ACA Contraceptive Mandate Rules

Consistent with a number of other recent district court opinions, a Pennsylvania federal district court in Geneva College v. Azar, (WD PA, July 5, 2018), issued a permanent injunction against applying the Affordable Care Act contraceptive coverage mandate rules to Geneva College to the extent that the college has religious objections to compliance. The Trump Administration has conceded that applying the Obama Administration's accommodation rules to religious non-profits would violate the Religious Freedom Restoration Act.  ADF issued a press release announcing the decision.

Notre Dame and HHS Sued Over Settlement of Contraceptive Mandate Coverage

Yesterday a group of Notre Dame undergraduate and graduate students filed suit in an Indiana federal district court against the University and the Trump Administration challenging a settlement entered last year with the University in its lawsuit over the contraceptive coverage mandate under the Affordable Care Act.  The complaint (full text) in Irish 4 Reproductive Health v. U.S. Department of Health and Human Services. (ND IN, filed 6/26/2018), contends that the settlement which exempts Notre Dame from furnishing contraceptive coverage to its students and employees where doing so would violate the University's religious tenets was entered in violations of the Administrative Procedure Act.  The settlement reflects the exemptions for religious non-profits which the Trump Administration adopted, but whose application has been enjoined nationwide by two other federal district courts.  The complaint also challenges the constitutionality of those now-enjoined rules.

According to the complaint, Notre Dame will provide some contraceptive coverage, but will require co-pays, and will refuse to cover certain IUDs and emergency contraceptives. Presumably this is an attempt to withdraw coverage of contraceptives that may prevent implantation of a fertilized egg.  Plaintiffs in the case are represented by Americans United for Separation of Church and State, the National Women’s Law Center (NWLC), the Center for Reproductive Rights and their co-counsel. NWLC issued a press release announcing the lawsuit.

Another Permanent Injunction Against Contraceptive Mandate For Religious Colleges

In yet another in a line of cases, the Trump Administration has conceded that applying the Obama-era contraceptive mandate rules to religious non-profits would violate RFRA.  This time in Dordt College v. Azar, (ND IA, June 12, 2018), an Iowa federal district court issued a permanent injunction against enforcing the rules against Dordt College and Cornerstone University to the extent that doing so would violate their religious consciences.  This specifically includes services that the schools view as abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling.  Detroit Free Press reports on the decision. Cornerstone University is in Michigan, while Dordt College is located in Iowa.

Another Court Enjoins Obama Era Contraceptive Mandate On Religious Non-Profits

As it has done in other cases, last week in Grace Schools v. Azar, (ND IN, une 1, 2018), the Trump Administration has conceded that applying the Obama Administration's contraceptive coverage rules to religious non-profits would violate the Religious Freedom Restoration Act.  The court thus issued a permanent injunction against applying the Obama Administration's compromise to Grace College & Theological Seminary.  Ft. Wayne News-Sentinel reports on the decision.

Injunction Entered Against Obama-Era Contraceptive Mandate

The Trump administration continues to concede that the Obama Administration's version of the contraceptive coverage mandate as applied to religious non-profits violates the Religious Freedom Restoration Act.  This week, in Southern Nazarene University v. Azar, (WD OK, My 15, 2018), an Oklahoma federal district court, without objection from defendants, enjoined enforcement of the mandate against four Christian universities.  The College Fix reports on the decision.

3rd Circuit Allows Religious Group To Intervene In State's Challenge To Trump Contraceptive Mandate Exemptions

In Commonwealth of Pennsylvania v. President United States of America, (3rd Cir., April 24, 2018), the U.S. 3rd Circuit Court of Appeals in a 20-page opinion reversed a Pennsylvania federal district court. The 3rd Circuit allowed Little Sisters of the Poor to intervene to defend Trump Administration interim rules expanding religious and moral exemptions from the Affordable Care Act's contraceptive coverage mandate. Becket issued a press release on the decision.

Permanent Injunction Issued In Contraceptive Mandate Case

In Sharpe Holdings v. United States Department of Health & Human Services, 2018 U.S. Dist. LEXIS 51158 (ED MO, March 28, 2018), the complex current status of the Obama Administration's Affordable Care Act Contraceptive Mandate rules led a Missouri federal magistrate judge to grant a declaratory judgment and permanent injunction to two religious organizations that object to those rules.  The Trump Administration had issued broader exemptions that covered plaintiffs, and at that point the government moved to dismiss the case as moot.  However in December 2017, Pennsylvania and California federal district courts entered nationwide preliminary injunctions against enforcement of the Trump Administration's broader exemptions. (See prior postings 1, 2). Thus the Obama Administration rules were again in effect.  This led the court in yesterday's opinion to hold:

in light of the Eighth Circuit's prior reasoning on plaintiffs' RFRA challenge to the accommodation process, and particularly given that the government no longer advances a substantive defense thereof, this Court holds that plaintiffs have attained actual success on the merits and are entitled to a permanent injunction.

Massachusetts Lacks Standing To Challenge Expanded Contraceptive Mandate Exemptions

In Commonwealth of Massachusetts v. U.S. Department of Health & Human Services, (D MA, March 12, 2018), a Massachusetts federal district court held that the state of Massachusetts lacks standing to challenge recently adopted Interim Federal Rules expanding religious and moral exemptions from the Affordable Care Act's contraceptive coverage mandate. The court concluded that the state had "failed to set forth specific facts demonstrating that it is likely to incur an injury" from adoption of the rules. MassLive reports on the decision.

Court Says Enforcing Contraceptive Mandate Against Christian College Violates RFRA

Last October, the Trump Administration issued Interim Final Rules that expanded exemptions from the Affordable Care Act contraceptive coverage mandate for organizations, colleges and businesses that have religious or moral objections to furnishing coverage for employees (or enrolled students), as well as for employees who object to having such coverage. (See prior posting.)  Shortly thereafter, the government entered settlement agreements in at least 13 cases conceding that the mandate imposes a substantial burden on plaintiffs’ exercise of religion and, thus, cannot be legally enforced against them under RFRA. (See prior posting).  In December, two separate federal district courts issued nationwide preliminary injunctions against enforcement of the Trump Administration's expanded exemptions. (See prior postings 1, 2).

Now this week in Wheaton College v. Azar, (ND IL, Feb. 22, 2018),  an Illinois federal district court granted Wheaton College a permanent injunction barring enforcement against it of the contraceptive coverage mandate to the extent that the mandate violates Wheaton College's conscience.  Wheaton is a Christian liberal arts college.  The court's decision came after the government conceded that enforcement of the mandate against the college would violate the Religious Freedom Restoration Act. Becket issued a press release announcing the decision.

Notre Dame Announces Another Change In Contraceptive Coverage

Notre Dame University on Wednesday announced another change in its policy regarding coverage for contraceptives by its employee health care plan.  Initially Notre Dame sued challenging the Obama administration's rule which required coverage, but allowed the coverage to be provided by the insurance company or third party administrator directly rather than by the University.  When the Trump administration broadened the exemption for religious non-profits so that Notre Dame could completely opt out of contraceptive coverage, the University chose to continue with the pre-existing coverage arrangement. This led to criticism from alumni and others. (See prior posting.)  Now in a letter to faculty and staff (full text), the University has announced a different approach-- one which makes a distinction between Catholic teaching regarding contraception and Church teaching regarding abortion (presumably including contraceptive drugs that prevent implantation of a fertilized ovum).  The letter from Notre Dame's president describes the policy as follows in part:

... [A]llowing the government-funded provision of drugs and services to continue through a third party administrator would provide access to contraceptives without University funding or immediate involvement. The government-funded program, however, includes the provision of abortion-inducing drugs, which are far more gravely objectionable in Catholic teaching. Stopping any access to contraceptives through our health care plan would allow the University to be free of involvement with drugs that are morally objectionable in Catholic teaching, but it would burden those who have made conscientious decisions about the use of such drugs and rely on the University for health care benefits.

I have reached the conclusion that it is best that the University stop the government-funded provision of the range of drugs and services through our third party administrator. Instead, the University will provide coverage in the University’s own insurance plans for simple contraceptives (i.e., drugs designed to prevent conception). The University will also provide in its plans funding for natural family planning options—options that do not use artificial contraceptives but employ natural methods for preventing conception. The University’s insurance plans (as opposed to the government-funded program) have never covered, and will not cover, abortion-inducing drugs.

In response to the new policy, Bishop Rhoades, Bishop of the Diocese of Fort Wayne-South Bend where Notre Dame is located, issued a statement yesterday (full text) welcoming parts of the new policy but strongly criticizing the University's decision to directly fund contraception coverage. [Thanks to Marty Lederman via Religionlaw for the lead.]