Civil and Human Rights

The Affordable Care Act (ACA) requires individual and group health plans to provide coverage for certain preventive services without charging patients. Because preventive services for women include a full range of contraceptive methods and related care, this requirement became known as the “contraceptive mandate.” Recognizing that some entities object to covering contraception for their employees or students, the government issued rules in 2012 and 2013 to exempt religious employers from the mandate and to allow accommodations for certain universities and other nonprofit organizations. The Supreme Court later held that family-owned businesses with religious objections were entitled to similar accommodations.

In October 2017, without an opportunity for public notice or comment, the federal government issued Interim Final Rules (IFRs) that greatly expand the ACA’s religious exemption, making it much easier for all types of universities and employers (including for-profit businesses, regardless of size or whether they are publicly or privately held) to opt out of providing coverage for contraception. The IFRs also added a new exemption based on an employer’s “sincerely held moral conviction.” Moreover, the IFRs lifted the requirement that employers or universities seeking an exemption provide notice to the government. Such notice had enabled the government and insurance companies to offer alternative coverage for employees and students seeking contraceptive services. These changes threatened contraceptive coverage for tens of thousands of women.

Several state Attorneys General filed lawsuits challenging the IFRs. Two federal district courts issued orders preventing the IFRs from taking effect, after finding that the government likely violated the Federal Administrative Procedure Act by failing to provide a notice and comment period before issuing the IFRs. These cases were appealed to the Ninth Circuit and the Third Circuit Courts of Appeal, respectively. A third federal district court held that Massachusetts did not have standing to challenge the IFRs because it could not show that the state itself was an injured party, and that ruling was appealed to the First Circuit Court of Appeals.

Lowenstein teamed up with the National Women’s Law Center (NWLC) to file friend-of-the court briefs in these appeals. In 2018, we filed briefs on behalf of the NWLC, the National Latina Institute for Reproductive Health, SisterLove Inc., the National Asian Pacific American Women’s Forum, and 55 additional organizations in the Ninth and First Circuits that focused on the physical and economic harm that will result if the IFRs are permitted to take effect, especially to women facing multiple, intersecting forms of discrimination.

In November 2018, the government issued new final rules on religious and moral objections to contraceptive coverage, which largely mirror the IFRs. A federal district court in Pennsylvania enjoined their enforcement on January 14, 2019, the date they would otherwise have taken effect. Along with our clients, we are watching the litigation and preparing to file briefs in support of challenges to the final rules.