Earlier this year, MoFo released a special edition of its MoProBono newsletter, titled " Women's Advocacy in Action," highlighting the many efforts our lawyers have made towards the advancement of women and women's rights. As a follow-up to that, we wanted to give kudos to co-chair of the firm's Commercial Litigation and Trial Group, Jamie Levitt, and her team for their work in defending women's reproductive rights and access to care.
Jamie was invited to speak on a panel regarding this highly topical subject during Columbia Law School's "Women in Big Law" forum. The event was sponsored by If/When/How Lawyering for Reproductive Justice, a student-run organization that raises awareness about reproductive justice, and co-sponsored by the Office of Career Services (OCS), Columbia Law Women's Association (CLWA), and Empowering Women of Color (EWOC). If/When/How is one of many organizations that signed on to an amicus brief supporting access to contraception that Jamie and litigation associate Rhiannon Batchelder have drafted and filed eleven versions of to date, with valuable assistance from the Center for Reproductive Rights.
More on the Briefs
The amici curiae in the briefs filed by Jamie and Rhiannon represent well over a million women working and studying in a variety of industries and unions, from students and teachers to social workers, lawyers, and more. Those supporting the briefs are united in their belief that no-cost contraceptive coverage plays a critical role in the success of women in the workplace and in higher education.
Our amicus briefs are in support of state government efforts to halt the enforcement of the Federal Administration's contraception exemption rules, which create broad religious and moral exemptions that would allow employers and universities to avoid the Affordable Care Act's (ACA's) contraceptive mandate. Currently, the Patient Protection Act and ACA require employer-sponsored health insurance plans to cover certain FDA-approved methods of contraception under the Contraceptive Coverage Benefit. The benefit is intended to lessen the burden of out-of-pocket contraceptive costs for insured women, enabling women to make choices about their family planning so that they may have equal opportunities in the workforce and in higher education.
Timeline of Events
In late 2017, the administration issued interim exemption rules that largely gutted the Contraceptive Coverage Benefit. MoFo filed amicus briefs supporting motions for preliminary injunctions against these rules in the Northern District of California, the Eastern District of Pennsylvania, and the United States Courts of Appeals for the First and Ninth Circuits. Nationwide preliminary injunctions were issued against the interim rule by United States District Court Judge Haywood Gilliam of the Northern District of California and Judge Wendy Beetlestone of the Eastern District of Pennsylvania. The Ninth Circuit upheld Judge Gilliam's preliminary injunction, but limited the scope to the five states that brought the suit: California, Delaware, Maryland, New York, and Virginia.
In late 2018, the administration issued its final exemption rules—rendering the prior litigation moot. Again, MoFo filed amicus briefs supporting the states' renewed efforts for nationwide preliminary injunctions against the final exemption rules.
The final rules are substantially similar to the interim rules and allow virtually any employer or university—including large, for-profit companies—to deny no-cost contraceptive coverage to their employees and students. Beyond religious exemptions currently built into the ACA, the moral exemption clause would allow entities with "sincerely held moral convictions" to deny coverage.
The Results so Far
The effort to fight the final rules has also proved successful. Judge Beetlestone issued another nationwide preliminary injunction and Judge Gilliam issued an injunction applicable to the now-eight plaintiff states. Both injunctions were appealed to the Third and Ninth Circuits, where MoFo's amicus brief was also filed. On July 12, 2019, the Third Circuit upheld the nationwide preliminary injunction issued by Judge Beetlestone.
Now that preliminary injunctions are in place, the focus has turned to permanently invalidating and enjoining the final rules. To that end, MoFo has filed two additional amicus briefs on this issue to support various states' motions for summary judgment in the Northern District of California and the Eastern District of Pennsylvania. Our amicus brief argues that the unpredictability of the final exemption rules would affect hundreds of thousands—if not millions—of women who depend on uninterrupted contraceptive care.
We stress that virtually any company or university could try to take advantage of the rules, falsely believing that they will save money, including non-religious employers seeking to take advantage of the final exemption rules citing "moral concerns." Jamie, Rhiannon, the Center for Reproductive Rights, and the amici curiae are continuing to support the states' fight to make sure that access to reproductive care remains in the hands of the women and families who depend on it.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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