Ferguson asks court in Seattle to declare new rules unlawful

SEATTLE — Attorney General Bob Ferguson today filed a lawsuit in federal court to block the Trump Administration’s new rules undermining women’s access to contraception.

The new rules would allow any company to deny coverage for contraceptive services to its female employees based on religious grounds. Additionally, certain types of organizations would also be able to deny this coverage on moral grounds.

If allowed to go forward, President Trump’s rules could have a significant impact on the more than 1.5 million Washington workers and their dependents who receive insurance through their employer’s self-funded plan. One study by the Center for American Progress found that contraception costs can generally exceed $1,000 a year without insurance coverage.

Some Washington women who currently use contraception may be denied no-cost coverage and be forced to turn to state-funded programs to receive the care they need. State-funded reproductive health services helped more than 90,000 patients in 2016 alone. More than three-quarters of those patients were women who used contraception, saving the state an estimated $160 million in maternal and birth-related costs, according to a report from the Washington State Department of Health.

“President Trump’s contraception rules are unfair, unlawful, and unconstitutional,” said Ferguson. “I refuse to let President Trump disregard our laws and our constitution in an effort to deny women access to contraception.”

The lawsuit, filed in the United States District Court for the Western District of Washington, alleges that the new rules violate the U.S. Constitution, the Affordable Care Act (ACA), the Civil Rights Act and the Administrative Procedure Act.

Constitutional violations

The Trump Administration’s contraception rules violate two constitutional provisions –– the First and Fifth Amendments.

The rules violate the Establishment Clause of the First Amendment by requiring individuals to bear the burdens of religions to which they do not belong. For example, the rules permit a for-profit business to impose the costs of its owner’s anti-contraception beliefs on employees who do not share those beliefs.

Only women, and not men, may have their contraceptive coverage denied based on their employer’s religious or moral objection. By making a gender-based distinction without sufficient justification, the rules violate the equal protection guarantee implicit in the Fifth Amendment.

Affordable Care Act violations

The Affordable Care Act guarantees preventive care at no added cost to patients. This includes preventive services specific to women’s health, including the full range of FDA-approved contraceptive methods. The Trump Administration’s new rules violate the ACA in multiple ways.

The new rules unlawfully contradict certain provisions of the Affordable Care Act, such as a prohibition against gender- or religious-based discrimination in health care access.

The ACA also prohibits any rule that “creates any unreasonable barrier to the ability of individuals to obtain appropriate medical care” or “limits the availability of health care treatment for the full duration of a patient’s medical needs.” The Trump Administration’s new rules violates both of these provisions.

Other legal violations

The contraception rules violate the Civil Rights Act and the Administrative Procedure Act.

The Civil Rights Act prohibits discrimination against women based on sex or the capacity to be pregnant. The rules result in women having less access to reproductive health care, which is discrimination based on their gender.

In addition, the Trump Administration issued the rules without proper notice or the opportunity for public comment, thereby violating the Administrative Procedure Act, which governs federal agency rule-making.

Ferguson is asking the court for an order declaring the new rules unlawful and an injunction halting their implementation. In addition to blocking the rule, the lawsuit seeks to recover costs and fees.

The lead attorneys in the case for Washington are Assistant Attorneys General Jeff Sprung and Alicia Young.

In 2017, the Attorney General’s Office has prevailed four times against the Trump Administration. Every court to have issued a decision has ruled in favor of the Washington Attorney General’s Office in cases it has brought against the Trump Administration.

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The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.

Contacts:

Brionna Aho, Interim Communications Director, (360) 753-2727; brionna.aho@atg.wa.gov