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State Lawsuits Against Contraception Mandate Exceptions Would Gut Religious Liberty


Within hours of the Trump administration’s release of new rules expanding the religious-based exemptions from the Affordable Care Act’s abortifacient and birth control mandate, left-leaning organizations and liberal states filed a flurry of lawsuits. The American Civil Liberties Union and the SEIU-UHW (a labor organization representing health-care workers) filed suit in a federal court in San Francisco, while Massachusetts’ attorney general raced to the local federal courthouse for the same purpose. A few days later, the attorneys general of Washington state and Pennsylvania initiated two additional lawsuits.

The largest coalition attacking the interim final rules came when the attorneys general of California, New York, Maryland, Delaware, and Virginia joined to challenge the Trump administration’s exemption in a federal court in California. That multi-state coalition has now emerged as the first set of plaintiffs to file a motion for a preliminary injunction seeking to prevent the new rules from going into effect.

On Thursday, the blue-state attorneys general filed their request for an injunction with federal judge Haywood S. Gilliam Jr., an Obama appointee confirmed to the bench three years ago. A hearing on the request is scheduled for February 8, 2018, when the parties will appear in Gilliam’s Oakland, California courtroom to argue the motion. In the interim, much can be gleaned from the attorneys general’s memorandum filed with the court, including the legal theories and precedent on which the states rely.

They Admit No Women Are Denied Birth Control Access

First, a practical point: The attorneys general’s brief finally acknowledges the truth religious individuals and organizations have been preaching since the Obama administration imposed the birth control and abortifacient mandate in 2011: exempting conscientious objectors does not deny women “access” to birth control. The attorneys general expose this reality by arguing that they have the right to challenge the Trump exemptions because the new rules harm the states, which will be left “to shoulder the additional fiscal and administrative burdens as women seek access for this coverage through state-funded programs, . . .” According to the plaintiffs, “[e]ven a slight uptick in such costs will cause irreparable harm to the States.”

While the states also argue the Trump exemptions will force governments to bear “the public health consequences if women are unable to gain that access” to contraceptives, the attorneys general’s memorandum details the numerous and extensive options already available to women seeking contraceptive subsidies.

For instance, according to the court filings, “California reimburses Planned Parenthood for family planning services provided. For every dollar Planned Parenthood spends on family planning services, the federal government contributes 77.49 cents while the state spends 22.51 cents.” According to the attorneys general, New York, Maryland, and Delaware all have state family planning programs, with Maryland funding “three statewide programs that provide access to contraception.” Virginia’s “Plan First” program provides contraceptive coverage for women in families below 200 percent of the poverty level.

For religious and moral reasons, individuals and organizations have sought for years to avoid funding contraceptives. Now states are suing because they too do not want to pay for contraceptives, albeit for a less reverent reason—financial. In presenting this argument to the court, it becomes clear to all that these exemptions do not deny women access to birth control, including free birth control.

Their Argument Would Preclude All Exemptions

More significantly, though, the attorneys general’s memorandum in support of their motion for a preliminary injunction exposes their wish to gut religious liberty. While in their lawsuit the attorneys general only challenge the Trump administration’s most recently announced exemptions, the logical extension of their arguments would also render the Obama administration’s exemption for churches and houses of worship invalid. In fact, under the states’ reasoning, the government could require a church to purchase health insurance that pays for elective abortions and sex “change” surgeries, rendering the Free Exercise Clause of the First Amendment a dead letter.

To explain: In their lawsuit, the states argue the court must set aside the new religious and moral exemptions because the Affordable Care Act did not provide the Trump administration the authority to craft the exemptions. But in the same breath the attorneys general stress that “[t]he ACA itself does not create exemptions or accommodations; nor does it delegate federal agencies the ability to create exemptions or accommodations,” they add that “[o]ver the past five years, however, the federal government has implemented a series of tailored exemptions and accommodations in order to reconcile the sincerely-held religious beliefs of a narrow category of employers and the compelling interest in access to contraception.”

Thus, “[t]he federal government carefully crafted a narrowly tailored exemption for religious employers, including churches and their integrated auxiliaries, conventions, and associations of churches.” But if the Trump administration’s exemptions represent an invalid exercise of authority, so too does the Obama administration’s carve-out for churches and houses of worship. The breadth or narrowness of the exemption is irrelevant to the states’ legal argument.

Similarly, the reasoning underlying the states’ Establishment Clause and Equal Protection claims would prevent Congress from granting any religious exemption, including to churches and houses of worship. According to the attorneys general, the Trump administration is denying women the equal protection of the law by “singl[ing] out only women’s health benefits and services,” in the exemption. And here’s the state’s Establishment Clause argument:

By promulgating the new [rules], Defendants have violated the Establishment Clause because the [rules] do not have a secular legislative purpose, the primary effect advances religion, especially in that they place an undue burden on third parties – the women who seek birth control, and the [rules] foster excessive government entanglement with religion. The [rules] also ignore the compelling interest of seamless access to cost-free birth control. This crosses the line from acceptable accommodation to religious endorsement. Further, the [rules] essentially coerce employees to participate in or support the religion of their employer.

Take this argument and substitute in the Obama administration’s rule exempting churches and houses of worship. Under the attorneys general’s reasoning, those exemptions would likewise be unconstitutional. Unconstitutional, not just beyond the authority granted by Obamacare, which means Congress could not craft any exceptions under the ACA to faith-based organizations, including churches and houses of worship. While the states focus solely on the supposed breadth of the Trump exemptions, the underlying reasoning strikes at the heart of religious liberty in this country.