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BLOCKED: Obama-Appointed Judges Torpedo Trump Administration's Attempt To Tweak Birth Control Mandate

The judiciary once again struck one for the Obama White House, with a judge issuing a nationwide injunction on a new Affordable Care Act regulation concerning contraceptives. The Washington Post reported that the regulation expanded the exemption clause with regards to birth control; employers can now cite moral and religious as reasons for the exemption. The first ruling only barred implementation of this Trump administration regulation in 13 Democratic states, including the District of Columbia. This latest one once again pits the Obama judicial cohort against the Trump White House (via WaPo):


A pair of federal judges stepped in at the last moment to pause Trump administration rules that would restrict the ability of some women to get birth control at no charge because their employers object on religious or moral grounds.

A Pennsylvania district court judge issued a nationwide injunction Monday afternoon, just as the new policy was slated to take effect. That ruling came less than 24 hours after a California district court judge issued a more limited stay in 13 Democratic states and the District of Columbia, while challenges are being argued.

The rulings in rapid succession, both by judges appointed by Barack Obama, are the latest legal twists in a dispute over an expansion of health benefits for women under the Affordable Care Act that has wound through the courts for years.

The ACA, the sprawling 2010 health-care law pushed through by a Democratic Congress, says that people should be insured for preventive services without paying any out-of-pocket fees — and that women’s health services must be included. Under the law, all forms of FDA-approved contraception have been covered since 2012.


The Trump administration rules allow objections to covering birth control on moral grounds, as well as religious ones. They broaden the range of employers able to claim such objections to include essentially all non-governmental workplaces. And they give the employer the choice of whether to permit a workaround accommodation.


David French at National Review noted this new Trump regulation wouldn’t impact the vast majority of the female workplace. In fact, it would be less than one percent. While Trump may be appointing and confirming federal judges at a solid pace, but he’s losing the legal war. At the same time, French warns that progressive judges are setting a horrific precedent, one where even the best of conservative judges aren’t immune from being tempted to screw over a future Democratic president. And I’m not criticizing that point or supporting it. It is what it is. 

Step One: The Obama administration uses its executive power to implement a progressive policy (such as DACA or the contraceptive mandate).

Step Two: The Trump administration uses its executive power to repeal the Obama-administration action and implement a more conservative policy.

Step Three: Progressive plaintiffs file suit in a friendly jurisdiction using dubious legal theories to seek a broad injunction against the Trump-administration action.

Step Four: Progressive judges join the #Resistance, write obviously flawed opinions, and seek to freeze Obama’s policies in legal amber.


The opinion itself was everything we’ve come to expect from Trumplaw, defined as the crafting of new judicial standards for the sake of defeating Donald Trump. The Affordable Care Act did not, by its plain terms, contain a contraception mandate for employers. As the Supreme Court explained in Burwell v. Hobby Lobby, the statute required “an employer’s group health plan or group-health-insurance coverage to furnish ‘preventive care and screenings’ for women without ‘any cost sharing requirements.’” Congress, however, “did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision.

In plain English, that means that the contraception mandate was at heart a regulatory mandate. Congress made an express delegation of its lawmaking authority (which is problematic on its own terms, but that’s a topic for a different day). The mandate was therefore a creation of the executive branch, and its contours are thus defined by the executive branch. The Trump administration has left the Obama regulatory mandate largely intact, but it has slightly expanded the employer moral and religious exemption in a manner it believes is consistent with the requirements of the Religious Freedom Restoration Act.

How slight is the expansion? The regulatory impact analysis indicated that it would affect between 31,700 and 120,000 women nationwide. For perspective, there are approximately 74.6 million women in the civilian labor force. The Trump religious exemption would therefore affect between 0.0004 percent and 0.0016 percent of the female workforce. And, keep in mind, each one of the affected women has voluntarily chosen to work for her employer. There are ample alternative choices if these women choose to prioritize contraception access in their employment decision.


We’ll keep you updated. 

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