In January, People For the American Way Foundation joined organizational allies to file district court briefs challenging President Trump’s discriminatory birth control rollback, which carves out sweeping religious and moral exemptions that allow employers and universities to withhold comprehensive reproductive health care coverage. We are now filing briefs at the court of appeals level. As filed in Pennsylvania v. Trump:

INTERESTS OF THE AMICI CURIAE¹

Amici are religious and civil-rights organizations that represent diverse faiths and beliefs but are united in respecting the important but distinct roles of religion and government in the life of the Nation. Constitutional and statutory protections work hand-in-hand to safeguard religious freedom for all Americans, ensuring that government does not interfere in private matters of conscience, does not promote any particular denomination or provide believers with preferential benefits, and does not force innocent third parties to bear the costs and burdens of others’ religious exercise. Amici write to explain why the challenged Final Rules violate fundamental First Amendment protections for religious freedom.

The amici are described in the Appendix.

INTRODUCTION

The Women’s Health Amendment to the Patient Protection and Affordable Care Act and the ACA’s implementing regulations require that employer-provided health plans cover preventive care for women— including all FDA-approved methods of contraception—without cost-sharing. See 42 U.S.C. § 300gg-13(a)(4); 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv). This requirement guarantees insurance coverage for family planning and other medical services that the government has determined are essential to women’s health and well-being. See INSTITUTE OF MEDICINE, CLINICAL PREVENTATIVE SERVICES FOR WOMEN: CLOSING THE GAPS 102–10 (2011), http://bit.ly/2t6lgfr.

Under 45 C.F.R. § 147.131(a) (2015), houses of worship have been fully exempt from the requirement. Under 45 C.F.R. § 147.131(c) (2015), religiously affiliated entities have been entitled to a religious accommodation (i.e., an exemption) if they give notice that they want one, in which case the government arranges for the coverage to be provided without cost to or participation by the objecting entity. And under Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 672 (2014), closely held for-profit businesses with religious objections are likewise entitled to the accommodation.

In October 2017, without notice-and-comment rulemaking, the government issued two Interim Final Rules that changed the accommodation process dramatically. Then, making “largely ‘non-substantial technical revisions’” that did “not alter the fundamental substance of the exemptions set forth in the IFRs,” the government issued its final rules thirteen months later. Pennsylvania v. Trump, 351 F. Supp. 3d 791, 803 (E.D. Pa. 2019) (quoting 83 Fed. Reg. 57,592, 57,567 (Nov. 15, 2018)).

The Rules establish religious and moral exemptions that effectively nullify the contraceptive-coverage requirement’s protections for countless women. The Religious Exemption, 45 C.F.R. § 147.132, provides that nongovernmental insurance-plan sponsors may, on the basis of religious objections, exempt themselves from the contraceptive-coverage requirement in a way that affirmatively bars the government from making separate arrangements to provide the coverage. Or objecting entities may instead elect to notify the government of their intention not to provide the coverage without standing in the way of the government’s separate arrangements (see id. § 147.131(d)), invoking the accommodation previously available to all but publicly traded companies.² And objecting entities that have taken the preexisting accommodation may revoke their notice to the government, thus requiring the government to curtail its separate provision of the coverage. See id. § 147.131(c)(4).

The Moral Exemption provides that nongovernmental insurance-plan sponsors (other than publicly traded for-profit companies) may likewise avail themselves of either version of the exemption, and switch between the two at will, based on what the government terms a “moral objection.” See id. §§ 147.131(c), 147.133.

Amici agree with the district court that the Rules violate both the procedural and substantive requirements of the Administrative Procedure Act. We write to explain in more detail why the Religious Freedom Restoration Act does not and cannot confer authority to promulgate the Rules.

SUMMARY OF ARGUMENT

The Supreme Court has made clear that when evaluating religious exemptions from generally applicable laws, “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U.S. 709, 720 (2005). If, in purporting to accommodate the religious exercise of some, the government imposes costs and burdens on others, it prefers the beliefs of the benefited over the beliefs, rights, and interests of the burdened, thus violating the Establishment Clause. See Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709–10 (1985). That is true whether a religious exemption is premised on the Religious Freedom Restoration Act (42 U.S.C. § 2000bb et seq.), on other federal or state statutes or regulations, or on the First Amendment’s Free Exercise Clause. See, e.g., Hobby Lobby, 573 U.S. at 729 n.37; Cutter, 544 U.S. at 720; Caldor, 472 U.S. at 709–10. Yet in the name of accommodating businesses and colleges, the Religious Exemption here strips employees, students, dependents, and other innocent third parties of the insurance coverage to which they are entitled by law, impermissibly imposing on them substantial costs and burdens just to obtain the critical healthcare that should be available to them without out-of-pocket costs.

The Supreme Court has also made clear that religious exemptions from general laws are permissible, if at all, only when they alleviate substantial government-imposed burdens on religious exercise. See, e.g., County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 US. 573, 613 n.59 (1989). When they do not, they are unconstitutional preferences for religion. Amos, 483 U.S. at 334. Yet the Religious Exemption here is available without regard to whether any entity demonstrates that the preexisting regulatory accommodation substantially burdens its religious exercise—a prerequisite that cannot be met. So RFRA does not authorize, and the Establishment Clause does not allow, the exemption.

Finally, although the government also affords a “Moral Exemption,” either that exemption is broader than the Religious Exemption, in which case it is ultra vires, or it is just the Religious Exemption by another name, in which case it suffers precisely the same constitutional defects as its sibling. Neither exemption can stand.

We plan to reissue this brief as developments warrant:

• 4/22/19: Brief filed in California v. HHS