AU Tells Federal Court: Trump’s Leaked Contraception Rule Would Harm Women

From AU's Wall of Separation blog: 

Late Thursday, Americans United told a federal appeals court that women would be severely harmed by the Trump administration’s proposed change to the current requirement that health insurance cover contraceptives, a change that would allow employers and universities to use religion as an excuse to deny contraceptive coverage completely.

Just as religious freedom is a fundamental American value, so is being able to make your own choices about health care. Decisions about women’s health should be left to women – not to politicians or employers.

But President Donald J. Trump, his Health and Human Services Secretary Tom Price and others in his administration want to give bosses the right to insert themselves into the private health care decisions of their employees, and misuse the concept of religious freedom to justify this invasion.

The proposed regulation, initiated by Trump’s May 4 executive order, would allow any employers to cite religious – or even “moral” – objections to opt out of the Affordable Care Act (ACA) provision that requires health-insurance plans to cover birth control with no co-pay. There’s no back-up plan. Under the Trump proposal, if the boss declines to cover contraceptives, the cost shifts to employees and students. (For more details on the Trump plan, read our analysis at our Protect Thy Neighbor project.)

“Using religion as an excuse to jeopardize women's access to basic health care is discrimination, plain and simple,” Richard B. Katskee, AU’s legal director, said in response to the Trump proposal. “If the rule is made final, we will fight it at every turn.”

In fact, AU has already begun fighting it: We filed our objections to the proposed rule with the 7th U.S. Circuit Court of Appeals yesterday, describing how the proposal – or any rule change that doesn’t provide affordable, seamless access to necessary health care – will harm women.

AU represents students in the case University of Notre Dame v. Price. These are the only women at risk of losing birth control coverage who are parties to the ongoing lawsuits filed in response to the ACA’s contraceptive-coverage provision.

The Obama administration had created an accommodation for non-profits with religious objections (and since expanded it to for-profit companies following the U.S. Supreme Court’s Hobby Lobby decision). Under this accommodation, organizations need only complete a short form to opt out of providing contraception coverage, and the government will work with third-party insurers to provide the coverage at no cost to the affected women.

But attacks on contraception coverage persisted in ongoing litigation as some organizations argued that merely requesting the opt-out violates their religious freedom.

These cases, including Notre Dame v. Price, have remained in limbo since the U.S. Supreme Court returned them to the lower courts in May 2016. AU and the other parties in our case were required to file status updates yesterday with the 7th Circuit.

AU’s report told the court that the Trump administration’s proposed change “would modify the religious accommodation at issue here in just the way that the government previously reported could not be done without depriving women like (our clients) of access to essential health services.”

That result would violate the First Amendment’s church-state provisions, which forbid “religious exemptions or accommodations from generally applicable laws that would have a ‘detrimental effect on any third party.’”

AU will continue to make it clear that religion cannot be used as an excuse to discriminate against women in their health care coverage.

Stay tuned—we’ll keep you posted on what happens with Trump’s proposal, this lawsuit and all of our Protect Thy Neighbor work to stop those who would misuse religious freedom as an excuse to harm others.