written by carly rolph
A decision by the United States Court of Appeals for the Ninth Circuit has narrowed a lower court’s nationwide ban on Trump administration rules exempting employers with moral or religious objections from providing birth control coverage otherwise required by the Affordable Care Act. In a 2-1 decision, the Court held that the district court had abused its discretion when it issued a nationwide preliminary injunction blocking the rules, and that the injunction should have been limited to the five states that brought the legal challenge.
The Affordable Care Act (“ACA”), passed under the Obama Administration, requires that plans in the health insurance marketplace cover contraceptive methods and counseling for all women, as prescribed by a health care provider. The ACA further mandates that these plans cover contraceptive services without charging a co-payment.
In October 2017, the Department of Health and Human Services (“HHS”) issued rules that vastly expanded the range of companies that could opt out of the ACA contraceptive mandate. These rules would allow some employers to deny insurance coverage of birth control because of their religious or moral beliefs.
In December 2017, California, Delaware, Maryland, New York and Virginia filed a lawsuit alleging that the new rules were illegally passed by federal agencies without giving notice or seeking public comment. The states contended that the Trump administration had made the change in policy a nationwide issue by failing to comply with the Administrative Procedure Act.
In a 2-1 decision on December 13, 2018, the Ninth Circuit held that the district court had abused its discretion when it issued a nationwide preliminary injunction blocking the rules, and that the injunction should have been limited to the five states that brought the legal challenge. The majority found that the nationwide injunction was too broad, and that an injunction applying to just California, Delaware, Maryland, New York and Virginia, the states that brought the legal challenge, would have given them total relief.
The majority found that the record did not show what the economic impact would be on the rest of the nation. “District judges must require a showing of nationwide impact or sufficient similarity to the plaintiff states to foreclose litigation in other districts, from Alaska to Puerto Rico to Maine to Guam,” United States Circuit Judge J. Clifford Wallace wrote in the majority opinion.
However, the court did find that the district court correctly concluded that the five states were likely to suffer irreparable harm, and that the lower court did not abuse its discretion in finding that the balance of equities and the public interest leaning in favor of granting the injunction. The majority found that the record was well-developed on how the rules would harm the five states.
In addition, the court said the district court had properly found that California, Delaware, Maryland, New York and Virginia were likely to prevail on their allegations that the United States Departments of Treasury, Labor and HHS wrongly proposed the two interim final rules in October 2017 without a notice and comment period.
The majority did not find the agencies’ arguments in favor of foregoing the comment period convincing. The agencies asserted that bypassing the notice sand comment period was justified by the need to lessen legal and regulatory uncertainty on the issue, stop the Federal Religious Freedom Restoration Act violations, and reduce health care costs. The vourt classified the agencies’ arguments as “general [p]olicy justifications,” finding they weren’t enough to demonstrate good cause for forgoing the comment period. The majority also found that the agencies’ contentions that certain provisions in the ACA allowed them to bypass the comment period for the rules was also likely to fail.
While the Ninth Circuit’s decision would allow enforcement of the new rules in many states, a preliminary injunction in a separate case in Pennsylvania remains in effect, so the rules are still blocked nationwide.
In addition, the Trump Administration recently issued a new set of rules similar to the 2017 rules, allowing for some companies to opt out of contraceptive e coverage on nonreligious “moral convictions.” These rules will take effect January 14, 2019, superseding the 2017 rules and leaving the injunctions in California and Pennsylvania moot.
Birth Control Benefits, HealthCare.gov, (last visited Dec. 16, 2018).
Cara Bayles, Nationwide Ban OK For Trump Birth Control Rules, States Say, LAW 360 (Aug. 17, 2018).
Danielle Nichole Smith, 9th Circ. Pares Nationwide Block of ACA Birth Control Rules, LAW 360 (Dec. 14, 2018).
Samantha Schmidt, Court partially blocks Trump administration rules allowing some employers to deny birth control coverage, THE WASHINGTON POST (Dec. 13, 2018).