California Sues To Stop Trump Administration Rollback Of Insurance Birth Control Requirement

Image courtesy of Nate Grigg

Within hours of the Trump Administration announcing two new rules that would allow businesses to opt out of offering their employees insurance that covers birth control, the attorney general for the state of California has filed a lawsuit to block the regulations from going into effect.

Under current law, most employer-sponsored insurance must include coverage for contraception. There is an exception in the law for certain businesses run by religious organizations that oppose birth control. The new rules introduced today by the Department of Health and Human Services would expand that exemption to any business that opposes contraception on religious or moral grounds.

“Donald Trump wants businesses and corporations to control family planning decisions rather than a woman in consultation with her doctor,” said California Attorney General Xavier Becerra in a statement this afternoon. “These anti-women’s health regulations prove once again that the Trump Administration is willing to trample on people’s rights.”

Though the rules won’t be published in the Federal Register until Oct. 13 — and won’t become official until after a 30-day public comment period — Becerra’s office filed a lawsuit [PDF] in federal court, seeking an injunction to prevent the regulations from taking effect.

The complaint argues that, unlike the existing exemption specifically crafted for religious organizations, the new rules would allow any employer to sidestep its legal obligation to provide this coverage by simply claiming it objects to birth control. There is, according to Becerra, “not even a requirement that the employer notify the federal government of a decision to stop providing contraceptive coverage.”

The lawsuit accuses the administration of violating the Administrative Procedures Act, the law that details how a federal agency creates and modifies regulations. In most cases, a new rule from the executive branch must go through an often lengthy process of proposal, a public draft, an open comment period, followed by a final draft that at least addresses the issues raised during the process. An expedited rulemaking process requires many months, many take a year or more before they are finalized.

However, these two regulations have been introduced as “interim final rules” (IFRs), which means they will become official a mere 30 days after they are published in the Federal Register.

Federal agencies are not supposed to go the IFR route willy-nilly. Rather, the APA requires that the agency must demonstrate a “good cause” explanation why the usual rulemaking process is “impracticable, unnecessary, or contrary to the public.”

The Trump administration, argues the complaint, has “not and cannot demonstrate good cause for failing to give any notice to the public or allowing for public comment prior to effectuating these new IFRs.”

The APA also requires that federal courts must “hold unlawful and set aside” any regulation that is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; or without observance of procedure required by law.”

“By promulgating theses new IFRs, without proper factual or legal basis, Defendants have acted arbitrarily and capriciously, have abused their discretion, have acted otherwise not in accordance with law, and have taken unconstitutional and unlawful action in violation of the APA,” claims the complaint.

Becerra also contends that these rules violate the First Amendment’s Establishment Clause, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The lawsuit claims that the new exemptions run afoul of this clause by going too far to accommodate an employer’s religious beliefs, “placing an undue burden on third parties — the women who seek birth control.”

Finally, the complaint alleges that Californians’ Fifth Amendment rights are being violated by “target[ing] individuals for discriminatory treatment based on their gender, without lawful justification.”

Becerra seeks declaratory judgment from the court that the IFRs do indeed violate these laws, and an injunction barring the government from implementing this rule change.

“What group of Americans will they target next? Will they allow businesses to deny you cancer treatment?” asks Becerra. “Will they exclude you from insurance coverage because of a pre-existing health condition? The California Department of Justice will fight to protect every woman’s right to healthcare, including reproductive healthcare. We’ll see the Trump Administration in court.”

This is likely just the first of several lawsuits to be filed in response to the new rules. The American Civil Liberties Union confirmed this afternoon that it will be suing, along with the National Women’s Law Center.