A federal judge in Pennsylvania has temporarily blocked the Trump administration’s new rules allowing employers and universities to opt out of covering contraception for their employees due religious or moral reasons.
The Trump administration rules, implemented by the Department of Health and Human Services in early October, allowed entities with “religious or moral” opposition to contraception to stop providing coverage, or participating in an Obama-era federal program that separately provided contraception coverage.
US District Judge Wendy Beetlestone heard arguments in Philadelphia Thursday in the case brought by Pennsylvania Attorney General Josh Shapiro. The following day, she agreed to grant Shapiro’s motion for a preliminary injunction, saying that the Trump administration’s rules could potentially cause the women of Pennsylvania “enormous and irreversible” harm. The injunction applies nationwide.
The injunction will stay in place as the trials continue, keeping the Obamacare requirement that employers provide no-cost contraception, while the arguments for and against the Trump administration's rules are heard in Pennsylvania.
Department of Justice spokesperson Lauren Ehrsam told BuzzFeed News in a statement that the administration "disagrees with the court's ruling and are evaluating next steps."
"This administration is committed to defending the religious liberty of all Americans and we look forward to doing so in court," she added.
The Pennsylvania case is one of many lawsuits filed by states and organizations, more than dozen of which were filed in the days following HHS’s ruling. California’s lawsuit had its first hearing earlier this week.
"This is just the first step, but today is a critical victory for millions of women and families and for the rule of law," Shapiro, Pennsylvania Attorney General, said In a press conference following the ruling.
"We’re pleased we’ve won the first battle in our fight today and look forward to the next steps."
Judge Beetlestone explained in her written opinion that a preliminary injunction can only be granted if it is determined that the plaintiff, in this case the state of Pennsylvania, is likely to “suffer irreparable harm.” Beetlestone said she believes that it is likely Pennsylvania would suffer two kinds of harm: financial harm to the state, and “harm to the health, safety, and wellness of the Commonwealth’s female residents,” she wrote.
Based on the testimony of doctors that Pennsylvania brought before the court, Beetlestone wrote she was convinced that women who could no longer receive cost-free birth control from their employers or schools were likely to either turn to “state and local programs” that provide free contraceptives, thereby costing the state money, or to forgo contraception altogether, thereby increasing the likelihood of unintended pregnancies and imposing “additional costs on Pennsylvania’s state funded health programs.”
The judge summarized the Trump administration's arguments against Pennsylvania’s assertions — that the state could not identify any woman who lost contraceptive coverage since the new rules were rolled out in October.
Following the release of the rules, BuzzFeed News reached out to more than twenty Catholic colleges and universities and around a dozen small businesses that had previously expressed interest in dropping contraception coverage, to ask if they had done so. While many did not respond, and several of the colleges said they do not provide any health insurance to their students, none of the entities told BuzzFeed News that they planned to take advantage of the new rules.
Notre Dame University initially announced it they would stop participating in the Obama-era federal program that enabled their insurance company to provide separate contraception coverage for their students and employees, but following uproar from students and faculty, the school reversed its decision.
Despite the lack of evidence of harm caused by the rules so far, Beetlestone wrote, “there is no need to wait for the axe to fall before an injunction is appropriate.” Especially, she added, since January 1 is the deadline for many insurance plans to change benefits enrollment.
California had also sought a nationwide temporary injunction to block to the contraception rules, but U.S. District Judge Haywood Gilliam Jr. has not yet ruled. Gilliam said in the hearing this week that he was also likely to grant the preliminary injunction because the Trump administration bypassed normal protocol for agency rules; instead of waiting for the designated public comment period before enacting the rules, they went into effect instantly.
The comment period went forward, however, ending in early December. HHS is required to review the comments and consider making changes to the rules, leaving employers who wanted to take advantage of them uncertain about the policies’ future. HHS has not announced how long it will take for them to review the comments, or whether they plan on making any changes the rules.
A Justice Department lawyer argued in the California hearing earlier this week that the rules needed to be implemented quickly, due to legal uncertainty over who Obamacare’s contraception mandate applies to. But Gilliam questioned that reasoning, Reuters reported Tuesday.
"I don't know why that could not be done consistent with the standard notice and comment period," the judge said.
The Catholic organization Little Sisters of the Poor, filed motions to join in on the lawsuits in California and Pennsylvania to help defend the Trump administration’s decision. The California judge granted Little Sisters’ request to join the suit, and heard their arguments. But the Pennsylvania judge denied Little Sisters’ motion to join the case. Mark Rienzi, a lawyer for The Becket Fund, which has helped defend Little Sisters of the Poor, told BuzzFeed News that they appealed this decision and expect their appeal to go to the Supreme Court.
“It doesn’t make sense to have these two secular governments fighting over the rights of religious parties,” Rienzi said. “This directly affects the Little Sisters.”
The organization, which is comprised mostly of nuns and cares for the elderly, have been at the forefront of the opposition to Obamacare’s contraception mandate since it was implemented. They participated in a lawsuit that went before the Supreme Court in 2016, before it was sent back down the the district courts for The injunction will remain in place as the court continues to hear Pennsylvania’s arguments against the rule.
Read the judge's ruling in the Pennsylvania case:
Ema O'Connor is a politics reporter for BuzzFeed News and is based in Washington, DC.
Contact Ema O'Connor at firstname.lastname@example.org.
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