How A Judge Halted The Trump Administration’s Abortifacient Mandate Exceptions

How A Judge Halted The Trump Administration’s Abortifacient Mandate Exceptions

The judge crystalized not just that elections have consequences but that so does the reach of government, legislative abandonment, and the ideology-imposing of unelected judges.
Margot Cleveland
By

On Friday, federal district court judge Wendy Beetlestone temporarily halted the Trump administration’s October 6 interim rules that provide moral and religious exemptions from Obamacare’s birth control, abortifacients, and sterilization mandates.

Beetlestone’s order followed a Thursday morning hearing in the lawsuit brought by Pennsylvania’s Democratic Attorney General Josh Shapiro against the Trump administration. At the hearing and in court filings, Shapiro argued the Trump administration violated the Administrative Procedures Act (APA) by issuing the rules without prior notice and an opportunity for public comment, and exceeded the statutory authority of the Affordable Care Act by providing unauthorized exemptions from the mandate. Shapiro also claimed the exemptions violated the establishment and equal protection clauses of the U.S. Constitution.

Because Shapiro sought a preliminary injunction to prevent the government from enforcing the exemptions pending a full trial on Pennsylvania’s claims, he needed to establish four factors: “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

So, Did Shapiro Meet Those Four Criteria?

In assessing whether Shapiro established the first, Beetlestone sidestepped the constitutional issues and considered instead only two narrow questions: “Did the Defendants here follow the proper procedure in issuing new rules that greatly expand exemptions to the law requiring health plans to cover women’s preventive services at no cost, and do the new rules contradict the text of the statute that they are meant to interpret?”

On the first question, Beetlestone’s opinion detailed the notice and comment requirements of the APA, and concluded that the Trump administration violated those rules. She also rejected the Trump administration’s argument that the interim final rules were exempt from the APA’s notice and comment requirements, and rebuffed the federal government’s position that any error was harmless because comments were accepted after the rule was published and before the agencies finalized the exemptions.

Had Beetlestone stopped there, her opinion would have merited little mention, beyond the outcome: a temporary blocking of the interim rules. The Trump administration could have appealed that narrow legal question—although because administrative law is so complicated, it is hard to forecast the likely outcome—or reissued the rules following notice and an opportunity for comment.

But she didn’t. Instead, in her 44-page opinion, Beetlestone concluded the Trump administration lacked the authority under the ACA to exempt employers from its birth control, abortifacient, and sterilization mandate. She also held the mandate did not substantially burden religious objectors’ rights and, in turn, did not violate the Religious Freedom Restoration Act (RFRA). Her analysis proved both flawed and revealing, crystalizing not just that elections have consequences—we wouldn’t be here absent President Trump’s ascension to the presidency—but that so too does the tentacle reach of the federal government, the legislative abandonment of governance, and the ideology-imposing supremacy of unelected judges.

Apparently Obama Can Do Things Trump Can’t

Beetlestone held the interim rules were invalid because they “contradict the text of the statute that they purport to interpret.” On this point, she is not wrong: The ACA expressly requires group health insurance plans to cover, at a minimum, and without “any cost sharing requirements,” “such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.”

The HRSA, which is part of the U.S. Department of Health and Human Services, “commissioned the Institute of Medicine” to identify specific preventative care that should be covered. The institute recommended that plans “cover all FDA-approved contraceptive methods recommended,” and the HRSA adopted that recommendation. Significantly, “Congress created only a single exemption from the ACA’s statutory mandate to cover women’s preventive care and that is for ‘grandfathered health plans.’”

Thus, as Beetlestone logically concluded, the plain language of the ACA does not authorize the Trump administration to craft additional exemptions from the “preventive care” mandate. But it also did not authorize the Obama administration to do so. Yet the HHS under President Obama exempted “religious employers,” defined as “churches, their integrated auxiliaries, and conventions or associations of churches,” from ACA’s contraceptive mandates. Under Beetlestone’s reasoning, the Obama administration’s exemption for “religious employers” cannot stand either.

Unwilling to admit that truism, though, Beetlestone instead claimed that in Hobby Lobby “the Supreme Court has held that exemptions like the one for churches and their integrated auxiliaries are required under RFRA and the First Amendment’s free exercise protections.” The Supreme Court did no such thing. And the portion in Hobby Lobby that Beetlestone cited came, not from the court’s majority opinion, but from Justice Ruth Bader Ginsburg’s dissent.

It’s Backwards Turtles All the Way Down

While Beetlestone wrongly claimed the Supreme Court had held that the Obama administration’s exemption for “religious employers” was required under RFRA, she is correct that RFRA would compel such an exemption for churches and other houses of worship. However, RFRA would likewise require the federal government to grant other organizations, such as the Little Sisters of the Poor, an exemption from the mandate.

Beetlestone held otherwise, though, concluding that an exemption was not needed because the regulations provided an accommodation process under which an objecting employer could opt out of providing contraceptive coverage and female employees would then obtain birth control directly from the insurer. But as Eric Rassbach, deputy general counsel at Becket—the law firm representing the Little Sisters of the Poor—told me, the Obama administration admitted the accommodation process “used the Sisters’ insurance plan to distribute contraceptives. That is unacceptable.”

Unfortunately, Becket never had the opportunity to make that point, because Beetlestone refused to allow the Little Sisters of the Poor to intervene in Pennsylvania’s challenge to the Trump administration’s religious exemption. During Thursday’s hearing, while Shapiro was inside attacking the interim rules, the Little Sisters convened outside the courthouse. Mother Loraine Marie Maguire prayed for the opportunity to continue their vital ministry of caring for the elderly poor, consistent with their faith.

Whether the Little Sisters will be able to do so won’t be known for some time. Becket has already appealed Beetlestone’s denial of the Little Sisters’ motion to intervene and on Friday filed a “protective notice” of appeal from her order temporarily enjoining the moral and religious exemptions. If the appellate court allows the Little Sisters to intervene, they will be able to challenge Beetlestone’s preliminary injunction on appeal.

The Trump administration has not yet filed an appeal, but has 60 days to do so. In the meantime, the parties are likely looking westward, where a federal district court in California heard oral arguments last week on the Little Sisters’ motion to intervene in the case brought there by the attorneys general of five states, as well as on the merits of the states’ motion for a preliminary injunction. No matter how the California federal court rules, though, the case is destined to reach the Supreme Court.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.

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