The Trump administration is attempting to torpedo the birth control benefit under the Affordable Care Act (ACA) by issuing regulations that render it utterly toothless. These regulations, which could effectively allow employers to deny contraceptive coverage without co-pay to anyone they please, are set to go into effect January 14—but not if a handful of states led by California and Pennsylvania have anything to say about it in federal court this week.
Attorneys for California and Pennsylvania–and the states that are suing in concert with them—argue that the Trump administration’s proposed regulations, known in legal circles as interim final rules or IFRs, have violated the requirements contained in the Administrative Procedure Act (APA). They also say the IFRs harm the states and their residents.
The IFRs followed an executive order called Promoting Free Speech and Religious Liberty that Trump issued in May 2017. That order directed certain federal agencies to address conscience-based objections to the birth control benefit. In keeping with this directive, two sets of interim final rules were issued in October 2017, as reported by Christine Grimaldi and Jessica Mason Pieklo.
These IFRs are draconian and a drastic departure from contraception-friendly Obama-era regulations. They allow organizations, regardless of whether they are religiously affiliated, to bow out of providing contraceptive coverage to their employees for practically any religious or moral reason. In addition, the IFRs make optional the accommodation that the Obama administration spent years litigating and crafting. (That accommodation permits religious objectors to opt out of providing contraceptive coverage so long as they notify their insurer, so that the insurer can step in and provide contraceptive coverage to the religious objector’s employees.)
The exemptions set forth in the IFRs are