The cost-free birth control of thousands is at risk unless Democratic attorneys general prevail in court this week. The Trump’s administration’s rollback of the Affordable Care Act’s birth control mandate is scheduled to go into effect on Monday, unless a federal judge blocks it.
The administration chipped away at the mandate by significantly broadening an employer’s ability to seek an exemption and choose not provide employees contraceptive coverage. In November 2018, officials released finalized regulations (effective Jan. 14) that permit any employer and college or university with religious beliefs to object to the mandate. The regulations also allow any employer (except publicly traded corporations) to object because of moral convictions.
Two multi-state lawsuits, led by California Attorney General Xavier Becerra and Pennsylvania Attorney General Josh Shapiro, are trying to block the regulations before residents reap the consequences. District judges in Pennsylvania and California are scheduled to hear oral arguments on Thursday and Friday, respectively. The administration tried to put the lawsuit on hold because of the ongoing government shutdown, but the judge denied the request.
Pennsylvania District Judge Wendy Beetlestone and California District Judge Haywood S. Gilliam already ruled against the administration’s initial rollback of the contraceptive mandate in December 2017. The administration initially issued interim final regulations in October 2017 — which didn’t go through a notice and public comment period, but went into effect immediately — that were very similar to the final rules issued in November 2018.
Pennsylvania, recently joined by New Jersey’s new attorney general, Gurbir Grewal, is arguing that the federal argument hasn’t addressed the “deficiencies identified by this Court” — and so Beetlestone should immediately block the revised policy.
“Rather than heed the direction of two federal courts, the federal Defendants chose simply to try again,” the states write in a legal brief.
“They did, however, acknowledge one serious error in the interim rules: they admitted that their estimate that the rules would impact at least 31,700 women was wrong; instead, the correct minimum number was closer to 70,500.”
The impact
The 2010 law requires health plans to cover preventative services and, in 2011, the Obama administration said that also included birth control. What’s more is that at least one of 18 FDA approved contraceptive methods must be provided without cost-sharing.
A lot of people — nearly all women in their lifetimes — use birth control, and not only to prevent unintended pregnancy, but to treat existing medical conditions (like pelvic pain from endometriosis and bleeding from uterine fibroids) or to prevent new ones (like endometrial and ovarian cancer). A recent National Center for Health Statistics report found roughly 46.9 million women were currently using contraception between 2015 to 2017.
The administration estimates 70,500 women would be affected by its new policy, but it’s difficult to say that’s all with full certainty. Officials also argue that these women can get affordable birth control at Title X clinics. However, the administration also proposed a regulation last spring that would exclude a lot of Planned Parenthood clinics from participating in the federal family planning program; studies have shown that it would be difficult for other Title X providers to care for the influx of patients.
Additionally, for an administration that claims its main priority is reducing the amount of money patients spend on prescription drugs, its regulations jeopardize progress on this front. The birth control mandate has meant a significant decrease in people’s out-of-pocket costs for prescription drugs. One study estimates women saved $1.4 billion in 2013 on the pill alone.
The lawsuit, explained
In late 2017, federal courts temporarily blocked the administration’s previous attempt at hobbling the birth control mandate. That said, the California judge limited its ruling’s scope to only the five plaintiff states. Both judges ruled that the interim final rule violated the Administrative Procedure Act (APA) and had no good reason to skip the notice and comment period, as required by the APA.
Experts believe at least one judge will issue a nationwide preliminary injunction, temporarily blocking the final regulations as they are litigated in full.
“This is because the Trump administration made very few changes relative to the interim final rules and because the judges may not look kindly on the agencies’ process of responding to comments on the interim final rules,” writes Health Affairs’ Katie Keith. (The administration made few changes to its final rules issued in 2018 after soliciting 110,000 comments for its interim final rules issued in 2017.)
Keith argues that the Pennsylvania judge will be sympathetic to the blue states’ argument, as Beetlestone criticized the administration for using comments on interim final rules to inform final rules, quoting the judge as saying “post-issuance comments do not comply with the notice and comment provisions of the APA.”
Obamacare legal expert Nicholas Bagley was also critical of the administration’s arguments, writing “[n]othing can save the misbegotten moral exemption rule.”
The endlessly litigated Obamacare mandate
The birth control mandate is one of the most litigated ACA topics — perhaps tied in first place with the individual mandate, which required everyone to have health plans.
Religious houses of worship were originally exempt from abiding by the birth control mandate. The Obama administration then gave religiously affiliated hospitals and universities a pass, allowing them to seek “accommodations” — meaning, employees could get contraceptive coverage, but that the insurer, not the employers, would only pay for it. The accommodation was offered to religiously-affiliated nonprofits and the Supreme Court, in Burwell v. Hobby Lobby in 2014, extended it to “closely held” private businesses.
But this wasn’t enough for the religious right. Religiously-affiliated nonprofits then sued the Obama administration over the accommodations; they wanted an exemption, period. But the Supreme Court ultimately remanded the lawsuit, Zubik v. Burwell, instructing the parties to work it out.
Then came Trump. Now, instead of being sued for demanding that birth control be covered, the administration is being sued for failing to do so.