Co-led by the City of St. Paul, MN, the amicus (“friend-of-the-court”) brief filed today on behalf of 32 U.S. cities and counties challenges Trump Administration rules allowing employers to deny contraceptive coverage based on religious and moral objections

Oakland, CA – Today a national coalition of cities and counties led by Oakland City Attorney Barbara J. Parker, the Public Rights Project and the City of St. Paul, Minnesota filed an amicus brief urging the U.S. Supreme Court to strike down two Trump administration rules that would permit employers to refuse to provide contraceptive coverage to their employees and plan beneficiaries based on so-called religious and moral objections.

Thirty-two (32) cities and counties from across the country, including the cities of San Francisco, Stockton and Alameda, joined the brief.

Copy of Amicus Brief, Supreme Court of the United States Case Nos. 19-431, 19-454

The Supreme Court is reviewing a lower court decision that invalidated two rules the Trump administration initially issued in October 2017 and finalized in November 2018.  The rules would establish both religious and moral exemptions to the Affordable Care Act’s (“ACA”) contraceptive mandate. Under implementing rules of the ACA’s Women’s Health Amendment, employer-sponsored insurance plans – which provide the majority of private insurance coverage in the country – must cover all FDA-approved contraception at no cost to plan beneficiaries.

“The Trump administration has wasted an inordinate amount of precious time and resources on reducing access to reproductive health care,” Oakland City Attorney Barbara J. Parker said. “This administration’s campaign to deprive individuals of access to contraceptives is a stark reminder of Trump’s callous disregard for the health of all Americans and for our fundamental constitutional rights.  Of course, it is immoral to deny people basic health care coverage. Clearly, this campaign once again reveals Trump’s allegiance and blind obeisance to the interests of our nation’s most cynical corporations and sanctimonious politicians, rather than to performing his duty to uphold the constitution and protect the health and safety of all Americans.”

“The Trump Administration’s rules undermine the will of Congress by allowing many employers to exempt themselves from covering essential health services, threatening to undermine public health in the middle of a pandemic,” said Public Rights Project President & Founder Jill Habig.  “Access to contraception is essential for women and families’ health, financial security and wellbeing.”

The municipal brief asserts that the moral exemption rule has no legal justification. Among other things, the brief contends that in other examples referenced by the federal agencies, Congress explicitly provided for both religious and moral exemptions. The ACA does not expressly provide for either such exemption, and the Religious Freedom Restoration Act, a federal law designed to protect religious freedoms, cannot support a rule meant to protect non-religious views.

The brief also explains the impact of these rules on the delivery of healthcare in many cities and counties that serve as the healthcare provider of last resort. Because people without contraceptive coverage will seek care from city- and county-run clinics, the municipalities will be forced to pay for care that would otherwise be covered by private insurance. In addition, as a result of the rules, some individuals will forego contraceptive care, while others will be forced to obtain less effective types of contraception. These impacts may result in other costs to these communities whether they relate to unplanned pregnancies or health needs of children.

The cities and counties point to a study of policy changes in Texas to demonstrate the potential impact. According to the study, after Texas excluded Planned Parenthood and other independent providers from its family planning program, the number of individuals receiving long-acting forms of contraception – which are far more expensive and often more effective – decreased by 35 percent, while Medicaid-paid births among the group increased by 27 percent.

As we argue in the brief, the rules would impose unnecessary costs on the municipalities and use up precious resources, which is particularly concerning given the ongoing COVID-19 pandemic. For example, some municipal-run clinics are not offering intrauterine devices (“IUDs”) because their insertion or removal may require the use of personal protective equipment, which is being rationed for the treatment of COVID-19 patients.

The brief was filed in two consolidated cases before the U.S. Supreme Court: Little Sisters of the Poor v. Pennsylvania and Pennsylvania v. Trump. Both arise out of the same underlying litigation brought by the state attorneys general of Pennsylvania and New Jersey. In that lawsuit, the plaintiff states obtained a nationwide injunction.

The Supreme Court has twice heard cases on related issues in prior terms. In 2014, the Court decided Burwell v. Hobby Lobby, in which it concluded that closely held for-profit businesses were entitled to protections under the Religious Freedom Restoration Act and must be offered an accommodation to the contraceptive mandate. Two years later, in 2016, an equally divided court remanded without deciding whether the accommodation process burden the religious exercise of religiously affiliated organizations such as Little Sisters of the Poor. The rules litigated in these cases were implemented in 2017 following the remand in Zubik v. Burwell.

Public Rights Project served as counsel of record for the brief, which was co-written by attorneys in the Oakland City Attorney’s Office, with assistance from the San Francisco Affirmative Litigation Project at Yale Law School. In addition to the lead cities of Oakland and St. Paul, the following cities and counties signed the brief:

• City of Oakland, California
• City of St. Paul, Minnesota
• City of Alameda, California
• Alameda County, California
• City of Albuquerque, New Mexico
• City of Austin, Texas
• City of Baltimore, Maryland
• City of Boulder, Colorado
• City of Chicago, Illinois
• City of Cincinnati, Ohio
• City of Columbus, Ohio
• Cook County, Illinois
• City of Dayton, Ohio
• City of Holyoke, Massachusetts
• City of Houston, Texas
• King County, Washington
• City of Madison, Wisconsin
• Marin County, California
• Milwaukee County, Wisconsin
• Monterey County, California
• City of New York, New York
• City of Philadelphia, Pennsylvania
• City of Pittsburgh, Pennsylvania
• City of Providence, Rhode Island
• City & County of San Francisco, California
• Santa Clara County, California
• City of Seattle, Washington
• Shelby County, Tennessee
• City of Somerville, Massachusetts
• City of Stockton, California
• Travis County, Texas
• City of West Hollywood, California