Press Release  AG Healey Leads Multi-State Brief to Stop Roll Back of Contraceptive Coverage Mandate

BOSTON — Attorney General Maura Healey today led 22 attorneys general in filing an amicus brief asking the court to maintain the current nationwide preliminary injunction stopping the Trump Administration from implementing new regulations rolling back the Affordable Care Act’s requirement that employers include birth control coverage in their health insurance plans, while litigation around the regulations is ongoing.

The amicus brief, filed today in the U.S. Court of Appeals for the Third Circuit, supports the states of Pennsylvania and New Jersey in their efforts to fight the Trump Administration’s appeal of the nationwide injunction the states secured in the Eastern District of Pennsylvania on Jan. 14, the day the final rules were supposed to go into effect. The nationwide preliminary injunction stopped the federal government from implementing new regulations that authorize employers and universities to deny contraception coverage to employees, students and dependents by citing a religious or moral objection.

 “Decisions about whether to use contraception are for women to make, not their employers,” AG Healey said. “My colleagues and I will continue to fight the Trump Administration over these attacks on women and their health.”

Since the ACA was enacted in 2010, most employers who provide health insurance coverage to their employees have been required to include coverage for contraception, at no cost to their employees. As a result of the ACA, more than 55 million women in the United States, including 1.4 million in Massachusetts, have access to a range of FDA-approved methods of birth control, including the longest-acting and most effective ones, with no out-of-pocket costs.  Prior regulations included an accommodation process by which employees whose employers had religious objections to contraception could nevertheless obtain seamless alternative coverage for contraception—seamless coverage that is not provided under the new regulations’ expanded exemptions.”

In the brief, the attorneys general argue that the new regulations threaten the health, wellbeing, and economic stability of hundreds of thousands of residents, as well as the economies of the states themselves, by depriving the residents of contraception coverage. By rolling back access to contraception, the new regulations will force states to spend millions of dollars to provide their residents with state-funded replacement contraceptive care and services and for healthcare associated with a rise in unintended pregnancies.

The attorneys general further argue that the District Court “acted well within its discretion in awarding” the nationwide preliminary injunction because the regulations threaten to harm thousands of women across the country. The brief notes that even the federal government admits that significantly more women and their families will be harmed than what the federal government had previously estimated in October 2017.

“Access to contraception advances educational opportunity, workplace equality, and financial empowerment for women; improves the health of women and children; and reduces healthcare-related costs for individuals, families, and the States,” the state attorneys general write in the brief.

According to the brief, contraceptive equity laws that exist in some states may mitigate the harm caused by the new regulations in those states but will not eliminate it, because of the large percentage of women who work for employers that have self-funded plans that, by federal law, are exempt from state regulation.

On the same day that interim versions of these rules were issued in October 2017, AG Healey filed suit over the roll back of the contraceptive coverage mandate. The Massachusetts case is currently pending in the First Circuit.

In January, AG Healey led two separate coalitions of states in filing two separate amicus briefs in the U.S. District Courts for the Eastern District of Pennsylvania and the Northern District of California asking the courts to halt the roll back of the contraceptive coverage mandate and to issue a nationwide preliminary injunction of the final regulations. The following week, the Pennsylvania district court issued the nationwide preliminary injunction at issue in this appeal, and the California federal district court issued a preliminary injunction covering the states that are plaintiffs in that action.

Joining AG Healey in filing today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, and Washington, as well as the District of Columbia.

The amicus brief was handled by State Solicitor Bessie Dewar, Assistant Attorney General Jonathan Burke of AG Healey’s Civil Rights Division, and Assistant Attorney General Julia Kobick of AG Healey’s Administrative Law Division, with assistance from Assistant Attorney General Jonathan Miller, Chief of AG Healey’s Public Protection and Advocacy Bureau, and Special Assistant Attorney General Liz Carnes Flynn of AG Healey’s Health Care Division.

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