In October, the Trump administration enacted two rules that expanded an employer’s right to deny women insurance coverage for contraceptive services. The rules offer exemptions to the contraception coverage mandate to any employer that objects to covering contraceptive services due to their religious or moral beliefs. The administration contends that Congress has a “consistent history of supporting conscience protections for moral convictions alongside protections for religious beliefs,” and argues that the contraceptive coverage mandate imposed a “substantial burden” on an employer’s exercise of freedom of religion. However, Judge Wendy Beetlestone of the Federal District Court in Philadelphia disagreed and issued a preliminary injunction on December 15th against the enforcement of these rules.
Judge Beetlestone ruled that the Affordable Care Act contained no statutory provisions that permitted the Trump administration to enact such expansive objections, stating that it is hard to imagine a rule that “intrudes more into the lives of women.” She found legal flaws with the enactment of these rules, including procedural errors under the Administrative Procedure Act. She also explained that these rules would lead to harmful consequences to tens of thousands of women who are at risk of losing coverage.
Anti-fetal homicide laws were enacted originally to protect mothers of unborn children against violent acts. Yet, in reality, “they’ve led to disproportionate prosecution against African American women who suffer miscarriages.” An ongoing case in Mississippi could set a dangerous precedent with regard to the criminalization of pregnant women for their purportedly reckless acts. Rennie Gibbs was charged with the murder of her unborn child after it was stillborn when she was 16 years old. Gibbs is being prosecuted for “depraved heart murder” because the autopsy showed that Gibbs had used cocaine during her pregnancy—but the cause of death was originally attributed to the umbilical cord being wrapped around the infant’s neck. That cause of death was never ruled out.
Sometime in March, the Supreme Court will consider whether for-profit corporations can claim the protection of either the First Amendment, or the 1993 Religious Freedom Restoration Act, in denying contraception coverage to employees. The Affordable Care Act (ACA) requires that employers provide a range of preventative services to employees, including birth control coverage. However, owners of businesses such as Hobby Lobby, an arts and crafts chain, and Conestoga Wood Specialties Corporation, which specializes in making wood cabinets, maintain that the ACA’s mandate on birth control coverage violates their religious freedom.
Though churches and other places of worship are exempt from the Affordable Care Act’s (ACA) requirement that insurers provide birth control coverage, institutions with religious affiliations that provide services to the public are not exempt. Health plan administrators for these institutions must provide birth control coverage to employees. However, religious groups may sign a government form objecting to the coverage and submit it to their health plan administrators, in order to “distance” themselves from perceived violations of their religious tenets. A group of nuns, the Little Sisters, run a nursing home in Denver, and they object to this compromise. The nuns maintain that signing the form makes them “complicit in providing contraceptive coverage.”
The case now awaits a decision in the 10th Circuit, which will determine whether the Little Sisters must provide contraceptive coverage under the ACA. While the appeal is pending, the Supreme Court has dictated that the nuns do not have to sign the government form objecting to the coverage. Instead, the Court requested that the Little Sisters make their objection in writing to the Department of Health and Human Services, and do not need to provide copies to the administrator of their health plan.
Mississippi has one of the highest teen pregnancy rates in the United States. A new law requires that any female who refuses to name the father of her child, and is under the age of 16, must submit to a DNA test conducted by authorities using blood from the umbilical cord. The DNA tests will be used to prosecute statutory rape cases by proving the father’s paternity. Supporters of the law claim it will help drive down the number of teen pregnancies in the State. However, detractors believe that the law may interfere unduly with privacy rights. Read more here.
Recently, the U.S. Court of Appeals for the Tenth Circuit held that an employer that does not qualify as a “religious group” under the Religious Freedom Restoration Act (RFRA) may challenge the Affordable Care Act’s (ACA) mandate to provide coverage for contraception for its employees. Formerly the RFRA exemption to the ACA mandate applied to religious groups, but not to business owners with particular religious beliefs.
The Court acknowledged that the plaintiff employer had been substantially burdened by the mandate and suffered irreparable harm, but did not grant the employer’s request for a preliminary injunction. The case was remanded to the district court; the district court will weigh the public’s interest in enforcing the mandate against the employer’s rights to refuse contraception coverage. Read more here.
Pursuant to a federal court order, the FDA must “make ‘morning-after’ emergency contraception pills available without a prescription to all girls of reproductive age.” The decision was applauded by reproductive-rights groups and condemned by anti-abortion and religious groups. The FDA previously approved sales of the “Plan B” pill without a prescription or age limits, however Health and Human Services Secretary Kathleen Sebelius subsequently ordered the FDA to prohibit girls under the age of 17 from purchasing the pills without a prescription. Last Friday, that decision was overturned as “arbitrary, capricious and unreasonable” by U.S. District Court Judge Edward Korman. Read the original articles here and here.