Friday, December 14, 2018
Page 1
Ninth Circuit Affirms Contraceptive Regulation Injunction
Majority of Three-Judge Panel Says California, Other States, Have Standing; Finds Venue Lies In All Federal Districts in State, Not Exclusively in Eastern District Which Includes Sacramento
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday upheld a district court’s preliminary injunction in California’s challenge to the Trump Administration regulations expanding exceptions to the Affordable Care Act’s contraception coverage requirements, but limited the injunction’s geographical scope.
California—joined by Delaware, Virginia, Maryland and New York—challenged two interim final rules (“IFRs”) issued by the Department of Health and Human Services, the Department of Labor and the Department of the Treasury which would expand the Affordable Care Act (“ACA”) exception for religious institutions and certain other employers from providing contraceptives to their employees. Under the IFRs, employers with “sincerely held moral convictions” would be exempt.
Senior Judge J. Clifford Wallace wrote the majority opinion in the case, California v. The Little Sisters of the Poor, No. 18-15144, joined by Judge Susan P. Graber. In it, he explains that the states have standing to challenge the law because of the potential financial harm to them; Senior Judge Andrew Kleinfeld maintained that no standing exists.
The opinion also affirms U.S. District Judge Haywood S. Gilliam Jr.’s ruling that venue in the Northern District of California was proper. The agencies contended that venue lies exclusively in the Eastern District, where the state capital is situated.
Wallace said:
“A state is ubiquitous throughout its sovereign borders….[A] state with multiple judicial districts ‘resides’ in every district within its borders.”
Gilliam agreed with the states that the IFRs, having been issued without the usual request for public comment, were likely to have violated the federal Administrative Procedure Act (“APA”). He granted a nationwide preliminary injunction preventing the IFRs from being enforced.
Likelihood of Success
Wallace noted that “[t]he APA requires that, prior to promulgating rules, an agency must issue a general notice of proposed rulemaking,” and that “the parties do not dispute that the religious and moral exemption IFRs were issued without notice and comment.”
He found that no exception to that requirement applied in the case.
The agencies claimed that swift action was necessary in order to bring the law into compliance with the Religious Freedom Restoration Act, a question which a prior Supreme Court Case had left open. Wallace wrote:
“But we need not determine whether there is a RFRA violation here because, even if immediately remedying the RFRA violation constituted good cause, the agencies’ reliance on this justification was not a reasoned decision based on findings in the record.”
He noted that in January 2017, they had “explicitly declined to change the accommodation” and then, without explanation, issued the IFRs in October of that year.
“The IFRs are devoid of any findings related to the issue,” the jurist wrote. “Indeed, the agencies cited no intervening legal authority for their justification….Given these failures, the agency action cannot be upheld on unexplained about-face.”
States Have Standing
The majority held that the states have standing because women who are unable to obtain contraceptives through their employers will turn to state programs to obtain them. According to the agencies’ own analysis, the gap in coverage could cost states from $18.5 to $63.8 million per year, depending on the metric used.
The majority rejected Kleinfeld’s notion that this harm would be self-inflicted.
The dissenting judge cited the 1976 Supreme Court opinion in Pennsylvania v. New Jersey, which had denied standing in a case where a New Jersey tax credit deprived Pennsylvania of tax revenue under its own scheme.
Wallace responded:
“[T]he plaintiff states’ laws in Pennsylvania directly and explicitly tied the states’ finances (revenue loss caused by tax credit) to another sovereign’s laws (other states’ taxes on nonresident income).”
Citing the 1992 high court decision in Wyoming v. Oklahoma, he said:
“Wyoming did not involve such state laws; the tax on Wyoming-mined coal was not so tethered to the legislative decisions of other sovereigns. The same is true of the contraceptive coverage laws of the plaintiff states here. Accordingly, we are not convinced that Pennsylvania controls in this case.”
Administration’s Position
The U.S. Department of Justice said in court documents that the rules were about protecting a small group of “sincere religious and moral objectors” from having to violate their beliefs. The changes were favored by social conservatives who are supporters of President Donald Trump.
The case became more complicated after the Trump Administration last month issued new birth control coverage rules that are set to supersede those at issue in the lawsuit before the Ninth Circuit. Under the new rules, large companies whose stock is sold to investors won’t be able to opt-out of providing contraceptive coverage.
Wallace said the new rules did not make the case before the Ninth Circuit moot because they are not set to take effect until January.
Becerra Comments
California Attorney General Xavier Becerra commented yesterday:
“A woman’s health decisions should be made by a woman and her doctor—not her employer or politicians. Congress made clear that all women and their families have the right to access cost-free birth control under the ACA.
“The Trump Administration’s rules attempt to trample these rights, with no regard for public comment or the rule of law. Today’s decision is an important step to protect a woman’s right to access cost-free birth control and make independent decisions about her own reproductive healthcare.”
Copyright 2018, Metropolitan News Company