Trump Administration Still Can’t End Birth Control Benefit Litigation

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Trump Administration Still Can’t End Birth Control Benefit Litigation

Jessica Mason Pieklo

President Trump promised his religious imposition executive order would end litigation challenging Obamacare's birth control benefit. That hasn't proven true.

The Trump administration on Friday told a federal appeals court it needs more time to determine how it will proceed with the cases challenging the birth control benefit in the Affordable Care Act (ACA).  

The notice came in a court filing in the case of Michigan Catholic Conference et. al, a group of cases filed by religiously-affiliated nonprofits challenging the accommodation process in the ACA, or Obamacare. That process requires nonprofits with a religious objection to providing comprehensive health care that includes birth control as preventive care to fill out a form notifying the federal government of its objection. From there, the government steps in and arranges contraception coverage for employees who need it. 

Those challenging the accommodation process argue that even notifying the administration of their objection violates their religious rights since it “triggers” third-party coverage for employees, thus making business owners with religious objections to contraception “complicit” in the sin of facilitating birth control access. 

The U.S. Supreme Court last year heard arguments in Zubik v. Burwell, a collection of cases challenging the accommodation process. Rather than directly resolving the question of whether these organizations could be exempt from the benefit, the Roberts Court sent the litigation back to the appellate circuits and told the parties to work out an accommodation process. 

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That never happened. The Obama administration continued to defend the benefit in the courts while it tried to work out an agency solution to the dispute. Those challenging the accommodation process refused to comprise, stating only a full exemption from the benefit like those offered to churches and other houses of worship would end their legal challenges.

President Trump in May signed an executive order purporting to exempt businesses and people from complying with the no-cost, no co-pay birth control benefit in Obamacare. By the end of the month, Health and Human Services Secretary Tom Price announced his agency was beginning the rule-making process to unwind the benefit. The Trump administration in its Friday filing with the court cites that rule making as support for its request to keep the litigation stalled in federal court.

During a Rose Garden signing ceremony, the president brought to the podium representatives of the Little Sisters of the Poor, an order of nuns challenging the accommodation process. Trump announced they had just “won” their litigation against Obamacare’s birth control benefit. Friday’s filing suggests that conclusion and the legal effect of Trump’s religious imposition order is not as legally binding or enforceable as the administration suggested. 

The administration needs until at least August 8 to determine how it plans to proceed in the cases, according to the notice.