Coalition of Attorney Generals, including AG Healey, attempt to stop loss of free, affordable female birth control for many

BOSTON – Attorney General Maura Healey today led 21 attorneys general in filing an amicus brief urging a Texas federal district court to reject a request that would effectively deny tens of thousands of women across the country access to birth control guaranteed to them under the Affordable Care Act (ACA).

In the case DeOtte v Azar, filed in the United States District Court for the Northern District of Texas, the plaintiffs have sought a permanent injunction that would bar the federal government from enforcing the ACA’s requirement that employer-provided insurance include birth control coverage. The challenge takes aim at the special accommodation for employers with religious objections to contraception that enables the employees of such entities to obtain seamless access to alternate coverage.

“Decisions about birth control belong to women, not to their bosses or to the White House,” AG Healey said. “We urge the court to protect seamless access to no-cost and reliable contraception for women in Massachusetts and across the country.”

So far in the case, the district court has certified nationwide plaintiff-classes of employers who have religious objections to providing contraception, and individuals who object to paying insurance premiums to insurers whose plans cover contraception. The state of Nevada today moved to intervene in the case to defend the contraceptive mandate.

In the amicus brief, the attorneys general argue the ACA’s contraceptive mandate does not violate the plaintiffs’ rights under the Religious Freedom Restoration Act because it does not impose a substantial burden on their own exercise of religion. A ruling in the plaintiffs’ favor could take away access to alternative coverage from women who work for employers with religious objections. The brief also urges the court to grant Nevada’s motion to intervene in the lawsuit.

Since the ACA was enacted in 2010, employers who provide health insurance coverage to their employees have been required to include coverage for contraception, at no cost to the employee, with narrow exceptions for religious non-profit organizations and for closely held, for-profit companies. The ACA also provides seamless alternative contraception coverage to employees of objecting religious employers. The ACA gives more than 55 million women in the United States, including 1.4 million in Massachusetts, access to birth control with no out-of-pocket costs.

According to the brief, the current accommodation in the ACA allows employers with religious objections to birth control to opt out of “providing, paying for, referring, contracting or arranging contraceptive coverage” and does not force the organization to play any role in providing contraception coverage.

The plaintiffs’ arguments are in line with those the federal government is making to justify new regulations that seek to authorize employers with a religious or moral objection to block their employees and their employees’ dependents from receiving insurance coverage for contraceptive care and services. A nationwide injunction granted in the Eastern District of Pennsylvania has stopped these regulations from going into effect while litigation is pending.

Earlier this month, the First Circuit ruled that AG Healey’s Office has standing to continue its litigation against the federal government over the regulations rolling back the contraceptive mandate. A separate case out of the North District of California has produced a preliminary injunction covering all of the plaintiff states challenging the rules.

This matter is being handled by State Solicitor Elizabeth Dewar, Assistant Attorney General Jonathan Burke of AG Healey’s Civil Rights Division, Assistant Attorney General Julia Kobick of the AG’s Administrative Law Division, and Jonathan Miller, Chief of AG Healey’s Public Protection and Advocacy Bureau.

Joining AG Healey in filing the amicus are the attorneys general of California, Colorado, 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.