Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Advanced Search Go
Free Newsletter Sign Up

Obamacare Birth Control Opt Out Rules Face 3rd Circuit Test

Feb. 19, 2019, 7:29 PM

Final rules exempting employers with religious or moral objections from Obamacare’s birth control coverage requirements should be allowed to take effect immediately, the government says.

President Donald Trump, the Health and Human Services Department, the Treasury Department, and the Labor Department Feb. 15 asked the U.S. Court of Appeals for the Third Circuit to lift a nationwide injunction preventing the rules’ implementation.

Pennsylvania and New Jersey won an order blocking the government from enforcing the final rules Jan. 14. The administration and the agencies appealed Feb. 6.

An Affordable Care Act provision, known as the “contraceptive mandate,” requires employee health plans to pay for birth control as part of women’s preventive health care coverage. It is one of the ACA’s most-challenged sections, having been subject to years of litigation brought by religious nonprofit groups.

The Trump administration in October 2017 issued interim final rules carving out religious and moral objectors from compliance. The final rules were set to replace them Jan. 14.

The states didn’t show they will be directly affected by the rules, so they aren’t the proper entities to challenge the opt outs, the government said in its appellate brief. Claims that women in Pennsylvania and New Jersey will lose coverage due to employers invoking the exemptions, then seek state-funded benefits are purely speculative, it said.

The states also aren’t likely to win on the merits, the government said. The agencies had authority to issue the final rules, it said. Moreover, the Religious Freedom Restoration Act requires the religious exemption because the contraceptive mandate imposes a substantial burden on employers’ religious exercise, it said.

A federal court in California blocked the rules Jan. 13, but that ruling applies only in the 13 states that challenged the opt outs in that action. Another lawsuit is pending in Massachusetts.

The U.S. Department of Justice represents the government. The Pennsylvania Attorney General’s Office represents the states.

The case is Commonwealth of Pennsylvania v. Trump, 3d Cir., No. 18-1253, brief filed 2/15/19.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at

To contact the editors responsible for this story: Jo-el J. Meyer at; Nicholas Datlowe at