A day after a federal judge in California enjoined new contraception rules in 13 states and Washington, D.C., a federal judge in Pennsylvania issued a nationwide injunction. The Departments of Health and Human Services, Treasury, and Labor announced the two final rules on contraception in November 2018. According to the agencies, those rules provide flexibility to employers with moral or religious objections to health insurance plans that cover contraception and sterilization. Under the new rules, those employers would be able to offer alternative health insurance plans without such coverage.
The agencies followed a process called notice-and-comment rulemaking to issue the rules. That process allows agencies to amend, repeal, or create administrative regulations after considering public feedback on proposed rules.
Pennsylvania and New Jersey sued the Trump administration over the final rules and made five arguments against them:
- The agencies failed to comply with notice-and-comment procedures required by the Administrative Procedure Act (APA)
- The rules fail the arbitrary-or-capricious test
- The rules violate Title VII of the Civil Rights Act
- The rules violate the equal protection guarantee of the Fifth Amendment
- The rules violate the Establishment Clause of the First Amendment
Judge Wendy Beetlestone, one of 333 judges nominated by Obama during his presidency, held that the states’ argument that the agencies failed to follow notice-and-comment procedures, in violation of the APA, was likely to succeed. She also held that the rules failed the arbitrary-or-capricious test because they exceeded the scope of agency authority granted by the Affordable Care Act (ACA). She cited Chevron v. NRDC (1984) and wrote that the ACA was clear on the question so the agencies were not entitled to judicial deference.
Judge Beetlestone ruled that the negative effects of a short period of decreased access to no-cost contraceptive services would be direct and irreversible. She said that states would be obligated to shoulder much of the burden of providing contraception for women who lose coverage following the final rules.
Beetlestone defended the nationwide scope of her injunction in light of criticism for similar actions taken by judges in other recent cases. She argued that an injunction limited to Pennsylvania and New Jersey would not reach citizens of those states who work for out-of-state employers nor reach students who may not be considered residents of those states. She said that her injunction might be broader than necessary to provide full relief to the states, but that the lack of empirical data requires judges to exercise discernment when crafting such orders.