Notice & Comment

Enjoining the contraception rules

On Friday afternoon, a district court in Pennsylvania enjoined the Trump administration’s new rules on contraception coverage from taking effect. The court’s ruling was not unexpected: I’d argued earlier that the rules were vulnerable on both procedural and substantive grounds, and the court’s analysis largely tracks my own.

Procedurally, the Trump administration had no good explanation for why it skipped notice and comment:

There was no deadline, much less an urgent one, to implement new rules. The [rules] did not resolve any uncertainty and … have not prevented ongoing litigation. And the blizzard of prior comments that [HHS has] received in past rounds of notice and comment rulemaking actually demonstrates that further comments are necessary given the public interest in this matter.

The sloppiness here is striking. HHS could have run through the notice-and-comment period on an expedited timeframe. Doing so would have delayed the rules by a few months, but probably no more than that. Instead, the Trump administration practically begged the courts to step in.

Barring a successful appeal, the Trump administration will now have to start all over. And appealing is risky. HHS apparently thinks that time is of the essence here. Yet, if the agency appeals and loses, it will have wasted another year before even starting notice and comment. At best, HHS might issue final rules sometime in the middle of 2019. At worst, the timeline could slip to 2020.

And make no mistake about it: the agency likely will lose on appeal, at least if the district court is right that the Commonwealth of Pennsylvania has standing to sue. (That’s a hard question.) The procedural violation here is basic stuff, and the Trump administration’s justifications for skipping notice and comment are almost laughably thin. Maybe the agency should swallow the loss and start over now.

* * *

Then again, HHS may have no choice but to appeal. The district court didn’t just criticize the agency for the procedural violation. It also held that the Trump administration’s rules suffered from two substantive problems. First, the court concluded, as I had, that the agency lacked even a colorable basis for exempting employers with non-religious “moral objections” to contraception coverage.

The Moral Exemption Rule allows any non-profit or for-profit organization that is not publicly traded to deny contraceptive coverage for its employees for any sincerely held moral conviction. This means that boards of closely held corporations can vote, or their executives can decide, to deny contraceptive coverage for the corporation’s women employees not just for religious reasons but also for any inchoate—albeit sincerely held—moral reason they can articulate. Who determines whether the expressed moral reason is sincere or not or, for that matter, whether it falls within the bounds of morality or is merely a preference choice, is not found within the terms of the Moral Exemption Rule.

The court found no statutory basis—because none exists—for such a sweeping exception to the ACA’s mandatory requirement.

Second, the court didn’t believe that HHS had the authority, under the Religious Freedom Restoration Act, to expand the Obama-era accommodation for employers with religious objections. In prior litigation, the Third Circuit had held that the Obama-era accommodation passed muster under RFRA. The court reasoned that RFRA therefore couldn’t justify transforming the accommodation into a free-wheeling exemption to the ACA.

I’m not sure what to think of this argument. It has a certain logical coherence, but it implies that agencies have, at most, a highly circumscribed role in crafting RFRA-sensitive accommodations to their rules. That might be appropriate: Congress didn’t delegate to every agency under the sun the authority to interpret and implement RFRA.

Nonetheless, the reasons that we think it’s a good idea to defer to agencies—that they’re experts in their regulatory domain and that they’re more politically accountable than the courts—apply equally here as elsewhere. And courts often defer to agencies’ judgments about how the laws that they’re charged with administering align with generally applicable legal rules.

When it comes to the Supremacy Clause, for example, the courts give “some weight” to an agency’s conclusion that a state law impairs federal objectives and must therefore give way: “The agency is likely to have a thorough understanding of its own regulation and its objectives and is ‘uniquely qualified’ to comprehend the likely impact of state requirements.” For similar reasons, shouldn’t the courts give “some weight” to an agency’s conclusions that RFRA demands a particular accommodation?

* * *

These are deep waters; I don’t pretend to know the right answer yet. For now, the important point is that HHS will have to appeal at least the RFRA portion of the district court’s order if it hopes to reestablish the exemption for religious organizations.

One final issue to ponder. The court’s order says simply that defendants “shall be enjoined from enforcing the new [rules].” On its face, the order doesn’t specify whether it applies on a nationwide basis, only in Pennsylvania, or only with respect to Pennsylvania as an employer. My hunch is that it’s the first: district courts over the past couple of decades have made a habit of entering nationwide injunctions. (As Sam Bray argues in a compelling article, that’s an unfortunate and damaging development.) But the order itself doesn’t say, and the Trump administration may need to ask the district court to clarify.

The bottom line, though, is that the Trump administration’s needless haste has imperiled one of its signature initiatives. However you feel about the new rules—and I think that reasonable minds can differ on that front—the incompetence on display here is breathtaking.


Print Friendly, PDF & Email