A three-judge panel has blocked the Trump administration from letting employers with moral or religious objections opt out of providing coverage that pays for birth control.
The 2-1 decision, issued Tuesday in the U.S. Court of Appeals for the 9th Circuit, came in response to a lawsuit filed by 14 state attorneys general who wanted the Obamacare-linked rules set under former President Barack Obama to remain in place.
The Trump administration wrote its own rules that loosened the exceptions, but the 9th Circuit judges determined that the Trump administration exemption was at odds with what Congress intended when it passed Obamacare.
“The panel held that the religious exemption contradicts congressional intent that all women have access to appropriate preventative care and the exemption operates in a manner fully at odds with the careful, individualized, and searching review mandated by the Religious Freedom Restoration Act,” wrote Judge J. Clifford Wallace, an appointee of former President Richard Nixon, in the opinion.
The mandate about birth control doesn’t specifically appear in Obamacare. The law was written to allow the Department of Health and Human Services to decide what type of preventive care health insurance plans should cover without copays, and the Obama administration determined that all forms of birth control should be included, from the pill to intrauterine devices to emergency contraception.
Judge Andrew Kleinfeld, a George H.W. Bush appointee, dissented because a judge in Pennsylvania had already blocked the Trump administration rule from taking effect, which he said rendered the latest action moot.
“The casual reader may imagine that the dispute is about provision of contraception and abortion services to women. It is not,” he wrote. “No woman sued for an injunction in this case, and no affidavits have been submitted from any women establishing any question in this case about whether they will be deprived of reproductive services or harmed in any way by the modification of the regulation.”
Clifford argued the other injunction might end, however, and said the 9th Circuit needed to step in. Siding with Clifford was Judge Susan Graber, a Bill Clinton nominee.
Anti-abortion and religious organizations had asked for the Trump administration to allow for certain exemptions to the birth control mandate. Under Obama, the rule had exemptions for houses of worship, but not for businesses or nonprofit organizations. Those who didn’t comply would be fined, and after the Supreme Court asked the Obama administration to find a workaround to the initial rule, groups again challenged them in court when they said employers would need to fill out a form every year.
Some organizations oppose all forms of birth control and sterilization, while others oppose specific kinds, such as IUDs and emergency contraception, which they say are abortifacients because their labels say they can prevent a fertilized egg from attaching to the uterus.
The religious exemption set under President Trump applies to any type of employer, but the moral exemption doesn’t apply to publicly traded businesses or to government entities. The administration has estimated that between 6,400 and 127,000 women would be affected.
