Court rules Trump officials can't invent religious anti-birth control exemptions


Tuesday, an appellate court blocked the overreaching religious exemption rules the administration created to drastically limit access to contraception.

In a stern rebuke of the Trump administration's position, a divided panel of the Ninth Circuit Court of Appeals ruled that the Department of Health and Human Services could not exempt all employers with religious objections from providing birth control.

Churches have been exempt from the Affordable Care Act's contraception mandate since 2013. Under Obama, if a nonreligious employer refused to provide birth control, there was an accommodation by which employees could get contraception through their employer's health care, but their employer didn't have to pay for it.

Under Trump, HHS sought to expand that exemption in two key ways. First, the exemption would extend to any employer that said they had moral or religious objections to providing birth control. They didn't have to be religiously-affiliated. They could simply say they had "sincerely held religious beliefs" and the rules, issued in October 2017, would exempt them. Next, the rules stated that if employees of an exempted employer wanted to have contraception covered by insurance, they had to get their own insurance policy.


Thirteen states and the District of Columbia sued over the rules, and in January of this year, a California federal district court enjoined the regulations from taking effect. On Tuesday, the Ninth Circuit upheld that ruling, which means that the rules remain blocked.

The appellate court found that the administration's approach to expanding the exemptions had no basis in law. They held that the fact one exemption exists — the carveout for religious employers — doesn't give the administration the right to issue different or expanded exemptions.

The court also looked at the legislative history of the Affordable Care Act. They found that at the time the ACA was passed, the amendment about contraceptive care was intended to  "requir[e] that all health plans cover comprehensive women’s preventative care and screenings—and cover these recommended services at little or no cost to women." In other words, Congress signaled its intent to cover contraceptive care for all women, and HHS wasn't allowed just to ignore that. In contrast, the court rejected the administration's idea that the ACA's contraception mandate wasn't really a mandate, but was instead a policy.

Now, the injunction against the exemptions stays in place while the district court more fully addresses the case at the trial stage. However, if this case makes it up to the Supreme Court, the administration will likely find a more sympathetic ear.

Published with permission of The American Independent Foundation.