Trump Keeps Losing in His Quest to Kill the Birth Control Benefit

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Analysis Law and Policy

Trump Keeps Losing in His Quest to Kill the Birth Control Benefit

Jessica Mason Pieklo

President Donald Trump promised his evangelical supporters he'd end the birth control benefit in May. Not so much.

President Donald Trump boasted in May that the lawsuits challenging the birth control benefit accommodation in the Affordable Care Act (ACA) were over because the challengers, groups of religiously affiliated nonprofits, had “won.”

The basis of Trump’s claim? His religious imposition executive order, which he suggested had the force of statutory law and could relieve those groups of their obligations to comply with the ACA. Last week, a federal appeals court reminded Trump he doesn’t actually have the power to unilaterally change the birth control benefit, no matter how many promises he makes.

On Friday, a split panel of the Third Circuit Court of Appeals ruled that Real Alternatives, a so-called crisis pregnancy center, must provide all employees with non-discriminatory health insurance benefits, including birth control. The ruling is the most recent in a series of cases stalled out in the federal courts while Republicans try to find a way—any way—to undo both the ACA and its corresponding reproductive health benefits. 

At issue in these cases is the accommodation process for nonprofits that are not houses of worship, but still claim a religious objection to providing health insurance that covers contraception. Those challenging the accommodation process claim the mere act of notifying the government of their objection unduly burdens their religion. In its opening paragraphs, the Third Circuit Court of Appeals definitively answered this claim. The questions the case presented, the court noted, were “(1) whether the Contraceptive Mandate must exempt a secular anti-abortion group with no religious affiliation, and (2) whether an employee’s religious beliefs are substantially burdened by the law’s requirement that his or her employer’s insurance plan cover contraceptives.”

Sex. Abortion. Parenthood. Power.

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“After careful review, but without any hesitation, we answer both questions in the negative,” said the court.

With that one sentence, the federal appeals court took down the entire rhetorical basis the Trump administration is using to build its case to insulate the religious right from complying with civil rights laws. In other words, the court said, religious objections cannot take precedent over complying with broad-scale civil rights protections such as the birth control benefit. 

That is the rhetorical basis of Trump’s religious imposition order. But that’s an order with no legal binding effect on anything. It just makes the Christian conservative base happy to have another moment in the spotlight to advance the dubious idea that their liberties are under attack in this country.

The Third Circuit order also further complicates the administration’s current legal dilemma of what to do with the benefit in these cases languishing in the federal courts. Currently, the U.S. Department of Health and Human Services is in the process of administrative rule making to try and do away with the benefit altogether. But that is a process that will take months. In the meantime, the contraception benefit challenges will continue in the federal courts.

The Trump administration has the option of appealing this panel ruling to the full bench of judges on the Third Circuit. So far, attorneys representing the administration have simply been telling the courts in these cases that they need more time—effectively kicking the can down the road. That request is looking increasingly like the attorneys were simply stalling till Congress managed a repeal of the ACA, including the birth control benefit, to give them cover in these cases. But that repeal hasn’t happened yet.

The Department of Justice under the Obama administration spent its entire tenure defending the benefit. Now, the Trump administration is stuck with the possibility of having to reverse course directly in federal courts on reproductive rights they way it has in the Texas voter ID case and Ohio voter purge cases. This could, in turn, influence how those federal courts rule, likely depending on judges’ ideologies—and it all means these cases could land back before the U.S. Supreme Court to decide the face of the birth control benefit while Congress dithers at ACA repeal.

The law, despite what Trump may suggest, does not change on a presidential whim. Trump cannot have a signing ceremony in the Rose Garden that automatically wipes away years of legal arguments and rulings, despite what his ego may tell him. For civil rights advocates, it’s been a difficult first few months living under an administration that neither respects nor understands the rule of law. Friday’s ruling in the birth control benefit accommodation cases shows, however, that, as with the Muslim ban, there are federal judges that do both respect and understand the law—and they plan to hold the administration accountable.