Written by Don Byrd

A federal judge in Pennsylvania granted the state’s request for an injunction blocking enforcement of new rules issued by the Trump Administration that would expand religious exemptions from the employee contraceptive coverage requirements in the Affordable Care Act. Because the rules ” contradict the text of the statute that they purport to interpret,” and because the administration failed to provide the proper notice and comment period prior to issuing new regulations, the court found the suit likely to prevail and issued an injunction on that basis.

The new rules were issued in October in response to an Executive Order from President Trump directing agencies to “address conscience-based objections” to the coverage requirements. The Religious Exemption Rule, the judge noted, would allow “any non-profit or for-profit entity, whether closely held or publicly traded, [to] claim the exemption based on sincerely held religious beliefs.” Together with a similar exemption for moral objections, the regulations would be the “proverbial exception that swallowed the rule.” As the court explained, Congress simply did not give the administration authority to expand the exemptions in this way.

Congress created only a single exemption from the ACA’s statutory mandate to cover women’s preventive care and that is for “grandfathered health plans.”… Given that there is no religious or moral exemption in the explicit text of the statute and there is one for grandfathered health plans, it cannot be assumed that Congress authorized the Agencies to create any additional exemptions.

The fact that the statute does not contain language specifically precluding the Agency Defendants from developing exemptions does not change this result. … Here, the mandatory language “shall” – found in the ACA’s requirement that covered health plans “shall cover . . . with respect to women, such additional preventive care” as provided for in the HRSA guidelines – indicates quite the opposite: no exemptions created by HHS are permissible (unless they are required by RFRA). …  That conclusion carries particular weight here, because, in 2012, Congress explicitly rejected an attempt to add to the ACA an exemption similar to the Moral and Religious Rules.

The court specifically rejected the administration’s argument that the expanded exemptions are indeed required by the Religious Freedom Restoration Act (RFRA). The Third Circuit, the opinion emphasized, has previously concluded that the Accommodation Procedure in the Affordable Care Act does not amount to a “substantial burden” on religious exercise, and thus does not trigger RFRA’s protections.

The NYTimes reports that the Justice Department is “evaluating next steps.” Stay tuned.