On Birth Control, States: 2 Trump Administration: 0

by | December 27, 2017

By Bob Egelko

A Bay Area federal judge barred the Trump administration on Thursday from authorizing employers to deny birth control coverage to women for religious or moral reasons, saying the government abruptly imposed the sweeping changes in October with no public notice or input.

The new contraceptive rules had already been halted last Friday by a federal judge in Philadelphia in a ruling the administration plans to appeal. In issuing his own nationwide injunction, U.S. District Judge Haywood Gilliam of Oakland cited the potentially profound impact on women who had gained access to contraceptive care, without charge, in the health insurance law championed by President Barack Obama.

"For a substantial number of women, (the administration's orders) transform contraceptive coverage from a legal entitlement to an essentially gratuitous benefit wholly subject to their employer's discretion," Gilliam said in response to a lawsuit by California, Delaware, Maryland, New York and Virginia.

The Obama administration exempted religious institutions from the contraceptive-coverage requirements -- an exemption the Supreme Court broadened in 2014 to include closely held corporations whose owners had religious objections to birth control -- but female employees could still receive coverage subsidized by their employers' insurers or the government.

By contrast, the rules announced by the Trump administration on Oct. 6 allowed any private employer to withhold contraceptive coverage for religious reasons, and gave many types of companies the option of denying coverage for moral reasons. The new rules also allowed employers to prevent insurance subsidies, leaving the women without coverage.

"Almost any employer in the country could obtain a religious exemption or a virtually undefined moral exemption," said attorney Janie Schulman, who filed arguments on behalf of the American Association of University Women and other women's groups and labor unions. "A company could claim that it morally believes women shouldn't use birth control or women don't belong in the workplace."

California Attorney General Xavier Becerra said the ruling reaffirmed that "a woman, not her boss and certainly not a politician, should decide what's best for her own health care."

The Justice Department disagreed with the ruling and is evaluating its next steps, said spokeswoman Lauren Ehrsam.

"This administration is committed to defending the religious liberty of all Americans and we look forward to doing so in court," she said.

Like last week's decision in a lawsuit by the state of Pennsylvania, Gilliam's ruling focused on the relatively narrow issue of whether the Trump administration had complied with the laws governing executive orders that affect members of the public. One law requires the government to publish its proposed rules in advance and invite public comment before making a final decision.

In this case, the administration argued that advance notice and comment would be "contrary to the public interest." Administration officials said the issue had already been debated at length, citing the hundreds of thousands of public comments on contraception submitted during the Obama administration, and argued that delaying the change would be unfair to employers whose rights were at stake.

Gilliam disagreed. Except in narrow circumstances, he said, the law entitles the public to comment on proposed rules such as these that could affect their lives, enabling government agencies to "proceed in a fully informed manner, exploring alternative, less harmful approaches."

The states, acting on behalf of their residents, "face potentially dire public health and fiscal consequences as a result of a process as to which they had no input," said the judge, an Obama appointee.

And although Gilliam did not rule on the administration's argument that its changes were necessary to protect religious freedom, he noted that the Obama administration's rules had been challenged on religious grounds in nine federal appeals courts since 2014.

Eight of those courts were "likely correct" in finding that those rules, with narrow religious exemptions and continuing contraceptive coverage, did not violate religious freedom, Gilliam said.

(c)2017 the San Francisco Chronicle