Notice & Comment

Blocking the Trump administration’s contraception rules (again).

Yesterday evening, a California federal judge enjoined the Trump administration from enforcing two rules that would greatly expand the exemptions to the Affordable Care Act’s contraception mandate. The injunction applies only in the plaintiff states, which include California, New York, Virginia, and ten others, as well as Washington, D.C.

I’ve written extensively about these rules, one of which offers an exemption for employers with religious objections to offering contraception coverage, and the other of which extends to those with moral objections.

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The crux of the fight over the religious-exemption rule is whether a federal agency can invoke the Religious Freedom Restoration Act to craft exemptions from statutes that, in the agency’s judgment, burden religious exercise. (Judge Gilliam rejected, for the same reasons I gave here, an unrelated—and completely bogus—statutory argument for the exemption.)

RFRA says that any statutes that Congress adopts are “subject” to RFRA “unless such law explicitly excludes such application.” So maybe Obamacare should be understood to contain within it a silent proviso: agencies must faithfully implement the law as written, except to the extent that doing so would conflict with RFRA. That’s what the Little Sisters of the Poor has argued: that Congress “delegated authority to the agencies to create exemptions to protect religious exercise,” such that RFRA “operates as a floor on religious accommodation, not a ceiling.”

The view has some force. Agencies will usually have a better sense than courts of whether and how their own rules will burden religious exercise. They’re also more politically accountable than courts, which may equip them to weigh an incidental burden on religion against the substantiality of Congress’s interest in adopting the law. And they’ve got the wherewithal to create context-sensitive rules that offer the regulated community clarity about RFRA accommodations, without the need to resort to costly litigation.

The trouble with that argument, however, is that RFRA contemplates that courts will grant relief for any violation, not agencies. Congress hasn’t explicitly delegated to agencies the power to craft exemptions from generally applicable laws, and the courts probably shouldn’t presume agencies can wield that open-ended power without some clearer indication from Congress. An agency’s views about RFRA’s application are entitled to respectful attention—but the courts still make the final call.

That’s Judge Gilliam’s view, anyhow. As he sees it, after several rounds of litigation, the federal courts have almost uniformly coalesced around the view that a set of Obama-era exemptions are sufficient to comply with RFRA. He doesn’t think the Trump administration has the authority to go further: “the courts, not the agencies, are the arbiters of what the law and the Constitution require.” He explains:

The Court questions the Little Sisters’ contention that RFRA effected a wholesale delegation to executive agencies of the power to create exemptions to laws of general applicability in the first instance, based entirely on their own view of what the law requires. As this case definitively demonstrates, such views can change dramatically based on little more than a change in administration. In any event, there is no dispute that both the prior and current Administrations have contended that they have administered the ACA in a manner consistent with RFRA. But the courts are not concerned, at all, with the Federal Defendants’ desire to “avoid litigation,” especially where that avoidance means depriving a large number of women of their statutory rights under the ACA.

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The religious-exemption rule presents some thorny legal questions. The rule governing moral exemptions, which was crafted to benefit just two non-religious anti-abortion groups, does not. It’s flat-out illegal, and obviously so. Here’s my take from back in October 2017:

In a truly baffling legal argument, HHS identifies a long string of statutes that ostensibly “show Congress’ consistent protection of moral convictions alongside religious beliefs in the Federal regulation of health care.” … [But n]one of th[ose] statutes purport to give HHS the authority to craft a freestanding “moral exemption” from the obligation to cover preventive services for women. To the contrary, the statutes demonstrate that, when Congress wants to add a moral exemption to a statute, it knows how to do so. Far from supporting HHS’s action, all of these statutes undermine it.

In his opinion yesterday, Judge Gilliam came to the same conclusion:

Congress mandated the coverage that is the subject matter of this dispute, and rejected a “conscience amendment” that would exempt entities like March for Life from this generally-applicable statutory requirement. The Final Rules note that “[o]ver many decades, Congress has protected conscientious objections including based on moral convictions in the context of health care and human services, and including health coverage, even as it has sought to promote access to health services.” But that highlights the problem: here, it was the agencies, not Congress, that implemented the Moral Exemption, and it is inconsistent with the language and purpose of the statute it purports to interpret.

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I’d expect the Trump administration to appeal the decision, and fast. (Or as fast as possible, under the circumstances. The Justice Department has been asking courts to pause most of its cases during the shutdown.) Either the Ninth Circuit or the Supreme Court could vacate the injunction while the appeal proceeds. If they don’t, however, the injunction could remain in place through the 2020 election.

There’s a decent chance, then, that these contraception rules will never take effect in the 13 states that brought this lawsuit.


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