A federal appeals court struck down Trump administration regulations on Friday that allow virtually any employer to exempt itself from federal rules requiring employer health plans to cover birth control.
This decision is only limited cause for celebration among public health advocates. Judge Patty Shwartz, the United States Court of Appeals for the Third Circuit judge who wrote the opinion, is an Obama appointee. The two judges who joined her opinion in Pennsylvania v. President, United States of America are Clinton appointees. The Supreme Court, meanwhile, is dominated by Republicans who are overwhelmingly likely to view this case very differently.
Friday’s victory for contraceptive care is likely to be temporary.
Nevertheless, there are aspects of this case that may trouble even some Republican judges. As Judge Shwartz explains, the Trump administration bypassed the ordinary procedures agencies must nearly always follow when writing new regulations. It also wrote those regulations far more expansively than even a broad reading of federal “religious liberty” laws could permit.
The case arises out of a longstanding dispute between employers who object to birth control on religious grounds and the Obama administration’s efforts to ensure that working women have access to contraception.
Briefly, the Affordable Care Act requires health insurers to offer cost-free coverage for certain “preventive care and screenings” for women “as provided for in comprehensive guidelines supported by” an office of the Department of Health and Human Services. The Obama administration commissioned an expert panel to determine which forms of care should be covered by this provision, and ultimately included all “Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”
Almost immediately, this rule provoked backlash — and litigation — from employers who object to one or more forms of birth control on religious grounds. In response to this backlash, the Obama administration created a process that would have bypassed the employer and allowed insurers to work directly with workers to provide contraceptive coverage, but some employers even objected to this process.
Ultimately, however, the Supreme Court never resolved the legality of this Obama-era process, likely because Justice Antonin Scalia’s death left the court evenly divided on whether religious objectors should have the sweeping legal immunity they demanded from the Supreme Court.
Then President Trump took power. The result was new rules that “expanded the existing exemption and Accommodation framework, made the Accommodation process voluntary, and offered similar protections to organizations with moral objections to contraceptives.” Thus, among other things, the Trump rules don’t even require an employer to state a religious objection to birth control in order to deny contraceptive coverage to their employees. A mere “moral” objection will suffice.
The Third Circuit’s decision in Pennsylvania steps into the void left by the Supreme Court, though much of its opinion rests on procedural errors by an administration that, in its apparent rush to serve the interests of religious conservatives, failed to complete fairly basic steps that agencies typically must complete before they can amend a regulation.
For one thing, when an agency promulgates a new regulation, the proposed regulation typically must undergo “notice and comment,” a period where the proposal is publicly available so that anyone with an interest in the regulation may comment on it. The Trump administration bypassed this process — though it did try to do notice and comment retroactively once its rule was already in effect.
That’s not allowed, Judge Shwartz explains. Among other things, the Trump administration claimed that it needed to bypass the ordinary process because of “the urgent need to alleviate harm to those with religious objections to the current regulations.” But people with religious objections are not entitled to such special treatment.
“All regulations are directed toward reducing harm in some manner,” Shwartz explains. Thus, if a mere desire to reduce harm against a particular group were sufficient reason to bypass notice and comment, notice and comment itself would be a meaningless requirement.
An even more basic requirement is that agencies may not regulate unless some federal law exists that gives them the power to regulate. Yet, while the Affordable Care Act gives the Department of Health and Human Services power to create regulations laying out which forms of preventive care for women must be covered by insurers, it does not authorize any agency to create religious or moral exemptions. To the contrary, the Affordable Care Act speaks of “comprehensive guidelines” governing insurers. That suggests that those guidelines must apply universally to all insurance providers.
To be sure, the Supreme Court’s decision in Burwell v. Hobby Lobby held that the Religious Freedom Restoration Act (RFRA), the primary federal religious liberty statute, exempts some employers from some obligations to cover birth control. But even if you assume that RFRA permits a regulatory agency to define the scope of these exemptions, the Religious Freedom Restoration Act is the Religious Freedom Restoration Act.
Nothing in its text suggests that the Trump administration can create a freestanding “moral” exemption to Obamacare’s “comprehensive guidelines.”
So, while it is likely that this Supreme Court will ultimately conclude that religious employers are free to deny birth control coverage to their employees, the Trump administration’s incompetence created a serious roadblock for the religious right. And it’s hard to see how even the most conservative judges will justify a “moral” exemption that seems to have no grounding in any provision of federal law.