They knew this fight was coming. And now the women’s health advocates and civil rights groups that have vowed to go to court to defend Obamacare’s contraceptive mandate have a better idea of what that fight will look like, thanks to a leaked draft proposal carving an exemption so broad you could drive a truck through it.
“Their intent is to try resolve the litigation,” Mara Gandal-Powers, senior counsel at the National Women’s Law Center, said of the leaked Trump administration language. “But, if they’re sick of litigation, that’s too bad. We are going to be continuing it.”
Hers and other groups, including the ACLU and the Center for Reproductive Rights, are gearing up for a legal battle over President Trump’s moves to weaken requirements under the Affordable Care Act that birth control be covered by insurers. The mandate has for years been the target of lawsuits from conservative and religious groups, but with Trump’s election and appointment of various officials skeptical of birth control coverage, the ground has shifted and the organizations that once stood with President Obama’s federal government in defense of the mandate will be spearheading the legal battles against Trump’s executive branch.
It took less than a few hours after the leaked draft exemption was published by Vox for warning shots to be fired promising lawsuits if the Trump administration goes forward with the carveout described in the leaked regulatory proposal.
“If this draft became the final rule, we would be suing,” Gandal-Powers told TPM Wednesday. “We think we have strong claims based on what is in here.”
Gandal-Powers would not go into detail about those potential claims—and whether they would focus on the substance of the rule or the fast-track process the Trump administration intends to use to implement it.
“We are considering all of our options,” she said
Other legal experts have said the aggressive approach the Trump administration is taking to hobble Obamacare’s birth control mandate makes their efforts more vulnerable to legal challenge, not less.
“It strikes me as quite likely that they are going to simply exchange one body of lawsuits for another body of lawsuits,” Timothy Jost, a health law specialist at Washington and Lee, told TPM Wednesday.
The draft rule allows employers of all shapes and sizes, as well as universities, insurers and even individuals, to refrain from offering or participating in coverage of birth control, on both religious and moral grounds.
“[T]his is about as sweeping an exemption as they could have written,” said Adam Sonfield, senior policy manager at the Guttmacher Institute, which studies reproductive rights issues, in an email.
The Obama-era accommodation for religious objectors that triggered a process by which employees could still get coverage would be available, but not required, under the draft proposal. Employers taking the exemption would merely need to communicate in their health plans that such services aren’t covered and notify employees of any change in benefits.
President Obama’s Health and Human Services Department had argued during countless lawsuits and years of litigation that the government has a compelling interest in seeing to it that women received contraceptive coverage. Yet the draft preamble to the new rule says, quite bluntly, that the Trump administration has concluded that such a compelling interest does not exist.
“What the Trump administration concluded was that the only way can get rid of this monkey on our backs is to conclude that there is no compelling justification, and so they go to great lengths to explain why there’s no compelling justification for requiring employers and universities to cover [birth control for] their employees or students,” Jost said
The draft document argues that there are many other ways women can access birth control outside of employer health insurance plans. It questions whether contraceptive access decreases the rate of unintended pregnancies, while arguing the mandate could lead to a “negative effect of changing sexual behavior” by providing birth control to teenage women.
“The basis of the lawsuit is going to be that there is a compelling interest that is protected by the contraceptive rule,” Jost predicted.
Other sections of the Affordable Care Act may be invoked in a potential lawsuit challenging the proposed exemption, such as a provision outlawing HHS regulations that block “timely” access to health care therapies and one that bars gender discrimination in health programs administered by the executive branch.
Even before the leak of the draft of the rule, experts in administrative and health care law were speculating that rushing through the process was putting the rule change at risk in court.
The Trump administration has signaled it would be skipping the typical notice and comment period—which can take many months or even years—to rewrite the Obama-era rules, and instead push the regulatory change through what is known as an interim final rule. An interim final rule, once approved, will be go into effect once it is published and does not have to go through the process of public comments and agency response (though there will be a comment period after it’s implemented).
To invoke the process, the administration must claim it has “good cause” to use it, according to Nicholas Bagley, a University of Michigan law professor.
“When you invoke a good cause exemption, you have to offer an explanation for why that invocation is appropriate and your justification for skipping notice and comment can be challenged in court,” Bagley said.
Since the publishing of the draft, Bagley has expressed skepticism towards the administration’s good cause rationale in the leaked draft, which claims that going through the typical public comments process would “further extend the uncertainty caused by years of litigation and regulatory changes.”
1/ Procedural point about the draft contraception rule: HHS’s justification for putting the rule into immediate effect is weak.
— Nicholas Bagley (@nicholas_bagley) May 31, 2017
It’s worth noting that the leaked document is a draft and not necessarily a final version. On numerous occasions under President Trump, draft proposals have leaked to public outcry, only to be significantly watered down once the official document is rolled out. And as part of the official process, the Office of Budget and Management is currently reviewing the proposal.
“They could decide it’s too risky to skip notice and comment” or suggest changes to the substance, Bagley said.
The Obama administration faced dozens of lawsuits, two of which reaching the Supreme Court, over their efforts to shore up the contraceptive mandate while accommodating religious objections. The first Supreme Court case, Burwell v. Hobby Lobby, resulted in a 5-4 court ruling that closely held, for-profit corporations must be eligible for an accommodation the HHS had offered religious non-profits. The second Supreme Court lawsuit, Burwell v. Zubik, targeted that very accommodation, which triggers the process by which a third party covers the services. The Supreme Court, at that point lacking a deciding 9th vote, punted by asking the government and the parties to come up with a compromise.