Opinion: California’s battle with Trump over contraception isn’t just about contraception


California Atty. Gen. Xavier Becerra’s many lawsuits against the Trump administration are policy fights, at the simplest level — legal battles by a blue state to impede a Republican president’s deregulatory and socially conservative agenda.

But a more interesting subtext is the work by California and its allies to limit the power of the federal government, and in particular the executive branch of the federal government. Most often, Becerra and company have pushed back against procedural shortcuts the administration has taken in Trump’s haste to erase every trace of the Obama administration’s work. But as a ruling Tuesday morning by the 9th U.S. Circuit Court of Appeals illustrated, sometimes the fights are over the far more meaty matter of the executive branch’s authority to interpret law.

At issue was a lawsuit California and 13 other attorneys general brought to block rules the Trump administration unveiled in 2017 to provide two sweeping new exemptions to the requirement that employer-sponsored health insurance plans provide contraceptive coverage to women with no out-of-pocket cost. One was for any employer “with sincerely held religious beliefs objecting to contraceptive or sterilization coverage”; the second was for “organizations with sincerely held moral convictions concerning contraceptive coverage.”


The administration didn’t pull the exemptions out of the blue; instead, it was reacting to Supreme Court decisions and orders that struggled to conform the contraception rules with the federal Religious Freedom Restoration Act, which limits the federal government’s ability to impose requirements that conflict with individuals’ religious practices. A series of employers — including a group of nuns, a small Protestant university and a company owned by devout Christians — successfully argued that they shouldn’t be required to enable or even or be complicit in their employees obtaining methods of birth control that violated their religious beliefs.

The Obama administration had crafted an “accommodation” designed to allow employees to continue to obtain contraceptive coverage through their employers’ insurance plans, but without their employers arranging for it or picking up the cost. The Trump exemptions went further, forcing employees of exempted employers who wanted contraceptive coverage to obtain their own insurance policy outside their group to cover it.

The states (and the District of Columbia) that challenged the exemptions made their customary procedural arguments, but the heart of the case was the administration’s authority to craft any exemptions at all. And in a split decision, the three-judge appeals panel held that the administration did not.

The relatively terse majority opinion reads like a primer on executive power, with the judges reminding the administration that the only authority it has to change a statutory requirement is the power Congress explicitly gives it. In this case, the Affordable Care Act states that employer health plans “shall, at a minimum provide coverage” with no out-of-pocket costs for the women’s preventive care and screenings identified by the federal Health Resources and Services Administration.

“But nothing in the statute permits the agencies to determine exemptions from the requirement,” the panel wrote. In other words, it said, the HRSA gets to determine which types of care are covered, but neither it nor anyone else in the administration has the power to exempt anyone from providing that coverage. The Trump administration can’t simply rewrite law — that’s Congress’ job (an admonition Republicans made multiple times to the Obama administration, with some justification).

Nor can the administration use the Religious Freedom Restoration Act as a blanket authority to change the ACA, the panel said. For one thing, the judges wrote, Congress exempted religious groups from some ACA requirements but decided not to exempt them from the contraceptive mandate. More importantly, they asserted, the accommodation developed by the Obama administration meets the needs of employees and employers alike. Under that accommodation, employers with religious objections to the contraception mandate could opt out of it by notifying the federal government, which would alert the insurer or insurance administrator (in the case of a self-insured organization) that it had to provide contraceptive coverage to the employer’s female workers at its own expense.


That’s a key sticking point, and the judges flatly rejected the arguments by some employers that opting out imposed a substantial burden, or that simply enabling women to obtain contraceptive coverage through their group insurance plans made them complicit in acts they considered immoral.

“The accommodation, in fact, is designed to ensure such organizations are not complicit and to minimize their involvement,” the panel’s majority wrote. “To the extent that appellants object to third parties acting in ways contrary to an organization’s religious beliefs, they have no recourse.” The Religious Freedom Restoration Act “does not entitle organizations to control their employees’ relationships with third parties that are willing and obligated to provide contraceptive care.”

That last point is crucial. The fight over the contraception mandate has always been as much about employers’ ability to dictate female workers’ behavior as it has been about conscience rights. Remember, employers are merely middlemen in this situation; the premiums they pay are actually considered a tax-exempt portion of their employees’ income. Just imagine what might happen if an employer said to its workers, “You may not spend any portion of your pay at a casino,” or a bar, or a brothel, or on any other pursuit that might violate their religious tenets. And yet because employers are conduits for insurance payments, that somehow makes them complicit in the care their employees receive?

Just to be clear, I’m not arguing that religious or moral objections to abortion and abortifacients are illegitimate. I’m just saying that objections to the accommodation the Obama administration developed are based on a fundamental misunderstanding of how employer-sponsored insurance works and who really pays for it.

But I digress. The dissenting judge, Andrew J. Kleinfeld, disagreed not just with the majority’s holding on the merits of the case, but also on whether the panel should have heard the appeal at all. A federal judge in Pennsylvania issued a nationwide injunction against the Trump administration exemptions last year as part of a separate lawsuit, which Kleinfeld argued rendered the case moot. It may ultimately prove to be, but the lessons the majority gave to the administration on the limits of its power remain valid.