SACRAMENTO – California Attorney General Xavier Becerra and New York Attorney General Letitia James, leading a coalition of eight attorneys general, filed a motion for summary judgment in their case against the U.S. Department of Health and Human Services (HHS) for its unlawful reinterpretation of Section 1303 of the Affordable Care Act (ACA), which limits healthcare coverage including reproductive care. On December 27, 2019, HHS issued a final rule requiring qualified health plans participating in the state exchanges like Covered California to send and collect separate bills—one for a health insurance premium and one of at least one dollar for abortion coverage. If a consumer misses the one dollar payment, they could lose all coverage on the exchange. This onerous and confusing requirement threatens women’s access to abortion and puts millions at risk of accidentally losing their health insurance coverage. Today’s motion argues that the new rule violates federal law and is inconsistent with the ACA and therefore should be vacated.

“As our nation wrestles with the COVID-19 public health crisis, it is more important than ever that we safeguard every American’s healthcare coverage, not endanger it with burdensome rules,” said Attorney General Becerra. “Let’s be clear: this rule is just another unprincipled attempt to interfere with women’s reproductive care. In California, we fight to protect women’s access to comprehensive reproductive healthcare, including abortion. An unlawful federal administrative rule won’t change that.”

Under California law, all health plans regulated by the state are required to offer abortion coverage as part of their basic healthcare services. The Trump Administration rule requires insurers to separately bill for the portion of health insurance premiums attributable to abortion coverage, requiring consumers to make a separate payment of at least one dollar for these services. Failure to pay the separate bill puts individuals at risk of losing all of their healthcare coverage. HHS itself has conceded that requiring separate bills and separate payments will inevitably lead to confusion, putting more than 1.4 million enrollees in California alone at risk of losing coverage if they inadvertently fail to make full premium payments on time. The rule also burdens states with unnecessary administrative costs and harms consumers who may face higher insurance premiums as a result of increased costs to carriers.

In today’s motion for summary judgment, the coalition argues that the rule is unlawful because it:

Violates the Administrative Procedure Act and is unlawful under the ACA;

Violates Section 1557 of the ACA, as it discriminates against women by targeting a healthcare service — abortion — unique to those with reproductive capacity;

Violates Section 1554 of the ACA, which prohibits the promulgation of any regulation that creates unreasonable barriers to the ability of individuals to obtain appropriate medical care; and

Seeks to frustrate state sovereignty by coercing states to change their policies relating to the protection of abortion care.

Today’s motion for summary judgment is the latest effort in Attorney General Becerra’s fight to defend against this illegal rule. After filing comments opposing the proposed rule, Attorney General Becerra led a coalition in filing a lawsuit challenging the final federal rule. The Attorney General has been a leader in fighting for women’s reproductive freedom: he led a multistate coalition in filing amicus briefs in support of lawsuits challenging a series of restrictive abortion laws in Missouri and Arkansas; joined a coalition of 22 attorneys general in filing an amicus brief supporting a constitutional challenge to a Louisiana law requiring abortion providers to maintain hospital admitting privileges; led a coalition of 20 attorneys general in filing an amicus brief challenging Mississippi’s near-total ban on abortion in Jackson Women’s Health Organization, et al. v. State Health Officer of the Mississippi Department of Health, et al; led a coalition of 22 attorneys general in filing an amicus brief in support of a lawsuit challenging Mississippi’s House Bill 1510; and secured injunctions against the Trump Administration’s harmful rules that would do away with the ACA’s contraception coverage requirement.

Attorney General Becerra was joined in filing today’s motion by the attorneys general of New York, Colorado, Maryland, Maine, Oregon, Vermont, and the District of Columbia.

A copy of the motion for summary judgment is available here.