On Wednesday, Vox’s Dylan Scott and Sarah Kliff revealed a draft Trump administration document that would cut off many women’s access to contraceptive coverage. Under this document, employers who object to birth control would gain sweeping ability to deny contraceptive coverage to their employees.
But the regulations could fail at the very moment the Trump administration tries to implement them — thanks to bad lawyering. As health policy expert and law professor Nicholas Bagley first explained, the draft regulations fail to jump through procedural hoops that are likely required by law.
Typically, when a federal agency hands down a new regulation, it must go through a lengthy process known as “notice and comment.” Under this process, the agency will publish a proposed rule, give individuals or interest groups that may have a stake in that rule an opportunity to comment, and then respond to those comments before finalizing the rule. Often, this process can take months or a year.
The Trump administration’s draft birth control rules, however, provide that they will take effect immediately upon publication — without first going through the notice and comment process.
As Bagley explains, the administration tries to get around this notice and comment requirement by labeling the new birth control regulations as an “interim final rule” and by claiming it has “good cause” to bypass the normal process. But they are pushing the limits of these exemptions pretty hard.
Among other things, the United States Court of Appeals for the D.C. Circuit, a powerful court with jurisdiction over many regulatory matters, has held that the good cause exception “is to be narrowly construed and only reluctantly countenanced,” and is “limited to emergency situations.”
In fairness, the Obama administration used interim rules to establish its own birth control policies, once because it was up against a statutory deadline and once because its previous rules were undercut by a Supreme Court decision. But those reasons, Bagley notes, “are classic reasons to find good cause.”
The requirement that new regulations should generally be announced in advance and then finalized only after public comment exists for sensible reasons. Among other things, an agency might be unaware of crucial information that it could learn from a member of the public. Or it may not have considered how a proposed rule could harm a particular group.
Notice and comment doesn’t force agencies to accommodate such groups, but it does help ensure agencies know who will benefit and who will be harmed by regulations before those regulations actually become binding. It also allows an agency that cares about minimizing the potential harm caused by a particular regulation to know what those harms could be and act accordingly.
The Trump administration’s draft birth control rules, by contrast, appear to have been drafted entirely with the interests of social conservatives in mind. Indeed, several provisions of the draft rules appear to be tailored towards highly unusual concerns raised by people with idiosyncratic objections to birth control.
The draft rules, for example, allow employers to deny contraceptive coverage to their employees if the employer has a religious or a moral objection to birth control. Exemptions for non-religious moral objections are quite unusual, in no small part because they could lead to absurd results. An individual who objects to following all laws, for example, could potentially claim a moral objection under the Trump administration’s draft rules.
Though there weren’t many examples of groups claiming non-religious moral exemptions to the Obama administration’s birth control rules, the Trump administration’s provision allowing employers to raise moral objections will hand a victory to the plaintiff in a single lawsuit — March for Life v. Burwell — where a conservative anti-abortion group claimed that it should be allowed to deny birth control coverage to its employees due to a non-religious objection.
Similarly, in Wieland v. Department of Health and Human Services, a Missouri lawmaker sued to keep his adult daughters from getting contraceptive coverage. The Trump administration’s draft rules include provisions dealing with individuals who object to birth control that will make it easier for fathers like the one in Wieland to deny coverage to their daughters.
The Trump administration, in other words, appears to have listened very carefully to concerns raised by socially conservative interest groups — so carefully, as a matter of fact, that their draft rule would benefit individuals with fairly marginal claims.
Meanwhile, they don’t want to hear from the rest of us.