Judge Suspends Rules Expanding Exemptions to the Contraceptive Mandate

Courts have given corporations personhood for rights like freedom of speech, but are business entities capable of holding sincere religious or moral beliefs?

The U.S. Department of Health and Human Services (HHS) and U.S. Department of Labor think so, at least in the context of insurance coverage for contraception. Federal Judge Wendy Beetlestone, however, disagrees.

In a recent ruling on a motion for preliminary relief, Judge Beetlestone issued a nationwide ban on the enforcement of two rules that would expand the ability for business entities to opt out of the provisions of the Patient Protection and Affordable Care Act (ACA) that require employers to offer insurance plans that include contraceptive coverage.

Under the Trump Administration’s rules, entities or individuals who object to providing contraceptives on the basis of either “sincerely held religious beliefs” or “non-religious moral convictions” would be exempt from the mandate.

The new rules would have expanded previously existing religious exemptions for faith-based organizations and would have allowed non-religious organizations and businesses to opt out of contraceptive coverage as well.

When HHS announced the rules, various faith-based organizations and other supporters of the rules applauded how they would allow conscientious objectors “to live out their faith in daily life and to continue to serve others, without fear of punishing fines from the federal government.”

Opponents of the rules, on the other hand, argued that they “could rob hundreds of thousands of women of their birth control coverage.”

When Pennsylvania and New Jersey challenged these rules in federal court, Judge Beetlestone found that when considering the consequences of the rules—in the form of lost contraceptive coverage for women and increased costs to states for subsidizing such coverage—the only serious question was not “whether the states will be harmed, but how much.”

Pennsylvania Attorney General Josh Shapiro celebrated Judge Beetlestone’s decision to halt the implementation of the Trump Administration’s new rules, calling it “a victory for millions of American and Pennsylvania women and their right to health coverage and contraceptive care under the Affordable Care Act.”

The history of the contraceptive mandate demonstrates the challenging relationship between providing comprehensive contraceptive coverage and respecting religious freedoms. Under a regulation issued by HHS in 2012 to implement the ACA’s contraceptive mandate, all private plans were required to cover, with no out-of-pocket costs to enrollees, designated contraceptive services that were approved by the U.S. Food and Drug Administration. Houses of worship and other religiously-affiliated organizations such as hospitals and universities could seek an accommodation in which the insurance company would directly supply the contraceptive coverage, as opposed to the employer having to purchase a plan including such coverage.

In the controversial 2014 case Burwell v. Hobby Lobby, the U.S. Supreme Court expanded the range of businesses that could seek accommodation to include “closely held” private businesses with religious objections to contraception.

In October 2017, HHS extended the logic of the Hobby Lobby holding when it issued an interim rule allowing larger, publicly traded companies to exempt themselves from the contraceptive mandate based on “sincerely held religious beliefs.” A second parallel interim rule created a moral exemption for some publicly traded companies. When Pennsylvania challenged these interim rules in federal court before Judge Beetlestone, she barred them from taking effect, just as she has now barred the final rules.

Supporters of HHS’s recent rules praise them on grounds of religious freedom. Mark Rienzi, president of the Becket Fund for Religious Liberty, has praised the rules as a victory in a “long, unnecessary culture war.” Rienzi’s organization represents the Little Sisters of the Poor, a nonprofit Catholic organization dedicated to care for the elderly, which fought HHS in court during the Obama Administration to get the Little Sisters an exemption from the contraceptive mandate.

In a statement following Judge Beetlestone’s decision, HHS spokesperson Caitlin Oakley also focused on freedom of religion when she reportedly said that no American “should be forced to violate his or her own conscience in order to abide by the laws and regulations governing our health care system.” She reaffirmed the Trump Administration’s “commitment to upholding the freedoms afforded all Americans under our Constitution.”

Yet the freedom the rules give to businesses would have come at the expense of women’s access to contraception. HHS has predicted that the rules may affect contraceptive coverage for 6,400 women, but that estimate is not exact, and the agency has stated that as many as 127,000 women could be impacted. According to HHS, these numbers represent a “small fraction of the 165 million women in the U.S.”

The small proportion of women affected, however, did not persuade Judge Beetlestone. She noted that, irrespective of the numbers, some “women will likely forgo contraceptive services or seek out less expensive and less effective types of contraceptive services in the absence of no-cost insurance coverage.”

Shortly after the rules were published, opponents of the rules had expressed concerns about their impact. Louise Melling, deputy legal director of the American Civil Liberties Union, argued that the Trump Administration policy represented “a chilling return to the days when the government treated women’s sexuality, and thus contraception, as immoral, perpetuating harmful stereotypes that have long been used to discriminate against women.”

In addition, some health care providers opposed the Trump Administration rules on the ground that providing no-cost contraceptive coverage makes medical sense. In a joint statement, a coalition representing American primary care providers pointed out that cost-free contraceptive coverage strengthens “the economic health of the nation by saving money for taxpayers and state and federal governments.” The coalition also expressed fears that the moral exemption rule would have a slippery slope effect, opening the door to the possibility that businesses and medical care providers could be allowed to opt out of other medical services such as immunizations.

HHS’s recent final rules were published on November 15, 2018 and were originally scheduled to take effect January 14, 2019. Although the ACA itself currently faces legal challenges, HHS has stated that it will continue “administering and enforcing all aspects of the ACA as it had before.” At least for now, the Obama-era contraceptive coverage requirements are here to stay.