State Joins Fight To Protect Women's Right To Birth Control

SACRAMENTO – California has joined a multi-state coalition defending women’s right to access reproductive services. They did so when the state’s Attorney General Xavier Becerra joined 22 attorneys general in filing an amicus brief to the Fifth Circuit Court of Appeals in the case of DeOtte v. Azar.

In their brief the attorneys general argue that States have an interest in safeguarding the Affordable Care Act’s (ACA’s) birth control coverage requirement, pointing out that it has benefitted more than 62 million women across the country. The filing points out that access to affordable birth control is therefore critical to the health, well-being, and economic security of the States’ residents. However, the brief then underlines that the federal government has refused to defend that contraceptive mandate, and concludes that the Trump administration is thus not adequately defending either women’s health interests or states’ rights.

“A woman’s decisions about her health are between her and her healthcare provider, not her employer and not the President,” said Attorney General Becerra. “More than 62 million woman have benefited from the Affordable Care Act’s birth control coverage to date. The Trump Administration’s decision not to defend the law and this coverage is an affront to women’s ability to access reproductive care, education, jobs and financial empowerment. We will continue to do everything we can to empower women and defend access to reproductive care.”

In 2017 and 2018, the Trump Administration issued rules which ignored the ACA’s birth control requirement and allowed employers to deny birth control coverage to their employees based on their religious and moral objections. In response California successfully led a coalition of 14 states and Washington D.C. in defending the ACA’s birth control coverage requirement. California obtained injunctions against the Trump Administration’s new rules in the Ninth Circuit and Pennsylvania obtained a similar injunction in the Third Circuit.

After those injunctions had been won though, the plaintiffs in the original lawsuit filed a complaint in a Texas district court challenging the ACA’s birth control mandate. In its ruling that Texas court decided that not only could any employer in the nation opt out of the birth control mandate, but also that they could do so without giving workers and plan holders any notice. In ruling in that fashion, the Texas court thus undermined California and Pennsylvania’s efforts to protect access to birth control coverage.

In the amicus brief, the attorneys general argue that the district court’s decision in DeOtte v. Azar impairs the States’ interests by depriving women of seamless contraceptive coverage, and that tens of thousands of women will lose their cost-free contraceptive coverage if employers are allowed to exempt themselves from the ACA requirement.

Further, the coalition argues that if the Texas decision were to be upheld then that loss of ACA-based coverage would result in women having to rely on State-funded programs instead, placing a high and unnecessary financial burden onto state budgets.

Last, as the federal government is refusing to defend the ACA’s contraceptive mandate in these cases, and as the burden of support would then fall to the states, the attorneys general argue that states’ voice must be heard as part of the court’s decision making process – yet as currently constructed the states’ interests are not being represented at all.

As a result, the brief urges the Fifth Circuit Court to allow states to intervene in the case to ensure not just so that the ACA’s contraceptive coverage requirement can be properly defended, but also because as the states will potentially bear the brunt of the cost of honoring the court’s decision, then the states must be allowed access to the court to have their voice heard.

Case No. 19-10754 is now before the Court of Appeals for the Fifth Circuit, in New Orleans, on appeal from the Northern District Court of Texas.

Attorney General Becerra joined Massachusetts Attorney General Healey in filing the amicus brief. They were supported by the attorneys general of Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.

A copy of the full amicus brief can be found here: https://oag.ca.gov/system/files/attachments/press-docs/Brief%20of%20amici%20curiae%20Massachuetts%20et%20al.%20in%20DeOtte%20v.%20Azar.pdf