Birth Control Mandate Ruffles 9th Circuit Panel

The ability of employers with moral objections to paying for women’s contraceptive care under terms of Obamacare ran into a raft of concerns by an appeals panel Thursday, but the three judges also appeared reluctant to rule on the merits of the case, for now.

“Suppose an employer is a Christian scientist and opposes any medical care, can they opt out of the ACA [Obamacare],” asked Judge Susan Graber in the 9th US Circuit Court of Appeals hearing. “How can one religious viewpoint be accepted over another? What if a Jehovah’s Witness says contraceptives are ok but not blood transfusions?”

“I’m just disturbed about accepting one religious exemption over another,” she told the Justice Department.

Yet Graber and her two panel members, Judges Clifford Wallace and Andrew Kleinfeld, appeared skeptical of resolving the merits of the case while another case in the Philadelphia-based 3rd Circuit is pending.

Currently pending before the appeals court is California’s challenge to the federal exemption granted to the Catholic nuns, Little Sisters of the Poor, who object on religious grounds from the Obamacare contraceptives mandate. California and four other states won a preliminary injunction that would require the sisters to carry health insurance that includes cost-free contraceptives, sterilizations and some drugs that can cause abortion.

The states argue that without the mandate, employee health plans will turn to the state for reimbursement of the coverage for the contraceptives.

Suing for Coverage

The Affordable Care Act, dubbed Obamacare, retained an existing mandate in the law that individual and group health insurers must cover certain preventative services – including women’s contraceptives without cost-sharing.

In 2011, preventative services were defined to include all FDA-approved contraceptives, sterilization procedures and patient education about reproduction. Insurers were required in 2012 to cover all such contraceptive services. Realizing some religions object to covering contraception, agency rules in 2013 exempted religious employers as an accommodation. This did not change rules of for-profit employers.

The Supreme Court then ruled in the landmark Hobby Lobby case in which the 5-4 majority held the private corporation could not be required to cover employee contraceptive services because the owners’ religious objections and because there were less restrictive alternatives. 

In May 2017, President Trump directed federal agencies to address conscience-based objections to the contraceptive mandate. The executive order ultimately created a dramatic expansion of the religious group exemption.

Those rules were challenged by California and several other states. The district court judge issued a nationwide injunction barring the rules from being enforced. In 2018, a two-judge majority on the 9th Circuit cut back on the injunction. It was upheld but limited to the five states that sued, not the entire country.

However, the rules have never gone into force because of a separate judge’s ruling in a Pennsylvania case that blocked it nationwide and is currently pending in the 3rd Circuit.

9th Circuit

Judges Wallace and Graber repeatedly asked during arguments whether it would be better to wait until the 3rd Circuit rules on the status of the national injunction before this circuit weighs in.

And Judge Kleinfeld pressed both sides about what new evidence might be submitted prior to the permanent injunction trial, currently scheduled for Sept. 5.

The state maintains that the case is about whether federal agencies have the power to transform a Congressional mandate into a “mere suggestion.”  

Karli Eisenberg, attorney for California, said the Women’s Health Amendment gave women across the country access to affordable contraceptives. She said religious and more exemption rules imposed by the administration have swallowed that rule by allowing any employer with a religious or moral objection to stop covering them without notice to their workers.

By contrast, Mark Rienzi, attorney for the Little Sisters, said they and other religious groups should have protection under the Religious Freedom Restoration Act, RFRA, from being under a “substantial burden” of their exercise of religion.

Case: California v. Azar, No. 19-15072

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