Health Reform WK-EDGE Oregon joins fight against contraceptive mandate exemptions
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Tuesday, July 16, 2019

Oregon joins fight against contraceptive mandate exemptions

By Deborah Hammonds, J.D.

Oregon was granted a preliminary injunction preventing implementation of the religious and moral exemptions for contraceptive coverage.

Concluding the requirements for a preliminary injunction had been satisfied, a federal district court in California granted the State of Oregon a preliminary injunction expanding coverage to the state of Oregon in the ongoing challenge of religious and moral exemptions to the contraceptive mandate in the Affordable Care Act (ACA). Oregon successfully argued that the state would experience increased costs if the exemptions went into effect (State of California v. HHS, July 2, 2019, Gilliam, H.).

Background. A coalition of thirteen states and the District of Columbia challenged the interim final rules and final rules promulgated by federal agencies that created the exemptions. In January, the court issued a preliminary injunction preventing the implementation of the final rules regarding religious and moral exemptions for contraceptive coverage in those states (see Court enjoins 2019 final rules for religious, moral exemptions, January 16, 2019). A few weeks later, Oregon was allowed to join the multi-state coalition. Oregon now seeks to expand the geographic scope of the preliminary injunction to prevent the rules from being implemented pending a resolution on the merits.

Potential harm to state. Oregon argued that if the rules went into effect, women who lose their entitlement to free contraceptives will turn to Oregon’s ContraceptiveCare and Reproductive Health Equity Act programs, thereby increasing costs to the state. Further, costs could be imposed on the state’s Medicaid program by women who lose contraceptive coverage, forgo contraceptive use entirely and unintentionally become pregnant. Oregon alleged that it expected at least one in-state employer—Hobby Lobby, which has five stores in Oregon—to invoke the exemption if it goes into effect.

While conceding an injunction would not have any immediate effect because the federal defendants were enjoined from implementing the rules nationwide based on the district court’s order in Pennsylvania v. Trump, Oregon contended that because the Pennsylvania injunction is "subject to appellate review and attack for its scope," there is an "imminent risk that the nationwide injunction could be lifted and thousands of Oregonian women left without contraceptive coverage."

The court previously concluded that the plaintiff states were entitled to a preliminary injunction because they had shown that: they were likely to succeed (or had at least raised serious questions going to the merits) on their claim that the rules violated the ACA, they would suffer irreparable harm absent preliminary relief, the balance of hardships tipped sharply in their favor, and the public interest favored injunctive relief. Finding there have not been any subsequent developments that would alter its analysis as to the likelihood of success, balance of the hardships, and public interest factors, the court incorporated by reference its prior discussion of these factors and turned the discussion to the remaining factor, irreparable harm.

Irreparable harm. The court determined that the existence of another injunction—particularly one in a different circuit that could be overturned or limited at any time—did not negate Oregon’s claim of irreparable harm. The state was likely to suffer irreparable harm if the rules go into effect and its injury was sufficiently imminent because though the rules are currently enjoined, the injunction could be altered at any moment. Were Oregon to no longer be covered by the Pennsylvania injunction, it could sustain irreparable harm immediately, before the court could decide the merits of its claims. Because of the routine basis upon which federal courts grant parallel injunctions and the immediacy of the harm were the nationwide injunction to be lifted, the arguments did not preclude granting a preliminary injunction.

As for the argument that Oregon’s five-month delay in seeking a preliminary injunction warranted denial of its motion, the court found the delay was minimal and not a basis for denying preliminary relief. While the state did not prosecute the case as quickly as the multi-state coalition, it had not slept on its rights and the court "would be loath to deny relief solely on the basis of a few months’ delay, particularly given the overlapping injunction."

The case is No. 17-cv-05783-HSG.

Attorneys: Christina Bull Arndt, California Office of the Attorney General, for State of California. Jessica M. Willey, Delaware Department of Justice, for State of Delaware. Samuel Towell, Office of the Attorney General of Virginia, for Commonwealth of Virginia. Justin Michael Sandberg, U.S. Department of Justice, for Health and Human Services., U.S. Department of Labor and Secretary of U.S. Department of Labor.

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